Opinion
No. CV 01-0278648S
June 23, 2004
MEMORANDUM OF DECISION ON POST-TRIAL MOTIONS (#'s 135, 136, and 138)
This is a personal injury action to recover for damages that plaintiff claims she incurred after a motor vehicle in which she was a passenger and which defendant Estrella was driving collided on January 21, 2000, with a vehicle driven by defendant Jenison. After hearing five days of evidence in which all three parties testified, along with the plaintiff's husband, and various expert witnesses, the jury awarded damages of $14,600. The present decision addresses plaintiff's post-trial Motion for Additur (#135), Motion to Set Aside Verdict as to Damages Only (#136), and Bill of Costs (#138). Defendants oppose any change in the jury verdict and object to certain of the costs claimed by plaintiff. For the reasons stated below, plaintiff's motions for additur and to set aside the verdict are denied, and defendants' objections to plaintiff's bill of costs are sustained in part and denied in part.
The first issue raised by plaintiff's motion to set aside is the court's decision not to charge the jury that lack of property damage does not correlate to minimal injury. Plaintiff filed both a motion in limine and request to charge to the effect that expert testimony is necessary before a party may argue that a jury could infer minimal injury from minimal property damage. The court declined to rule pretrial on the motion in limine and reserved the issue for decision at trial.
Plaintiff's claim on this issue fails for two reasons. First, she was the one who introduced evidence about the extent of property damage that the collision caused, without restriction or limitation on the use of such evidence. On direct examination of defendant Estrella, plaintiff elicited testimony that after the collision Estrella needed to replace the bumper of her vehicle and that the car received various dents and scratches from the accident and plaintiff introduced into evidence photographs showing the damage to defendant Estrella's vehicle. Surely the inference plaintiff sought the jury to derive from this evidence was that, if the collision had been severe enough to require replacing a bumper, it could have caused the personal injuries claimed by plaintiff. Thus plaintiff waived any such claim by the evidence she herself introduced and the inferences she sought to be derived from such evidence.
Second, the plaintiff's legal claim is not the law in this state. Although the plaintiff cites a Delaware Supreme Court case, Davis v. Maute, 770 A.2d 36, 28 (Del. 2001), and one trial court in this state that has given the charge requested here by plaintiff, the law of this state is to the contrary. In Berndston v. Annino, 177 Conn. 41, 411 A.2d 36 (1979), our Supreme Court set aside a verdict where the trial court had excluded evidence about the severity of impact in a motor vehicle collision in a case where the only issue had been the "nature, extent and proximate cause of the injuries suffered by the plaintiff." Id. 42. The court's holding there is binding on this tribunal: "Speed is relevant to the severity of impact and, inferentially, to the injury sustained." Id.
[E]ven though liability is fully admitted, evidence of speed, physical impact, and the like is admissible as relevant to the probable extent of personal injuries. This accords with our view. We conceive this to be a rational and logical approach to this problem.
Id., 44.
The plaintiff also claims in her motion to set aside and the motion for additur that the jury's award of economic damages, $6,600, is insufficient as a matter of law. The court will consider the claim raised by these two motions together because the standard for each is the same. Hunte v. Amica Mutual Insurance Co., 68 Conn. App. 534, 541, 792 A.2d 132 (2002). "A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." Marchell v. Whelchel, 66 Conn. App. 547, 582, 785 A.2d 253 (2001). The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only the most compelling evidence justifies setting aside a jury verdict because doing so interferes with a litigant's constitutional right to have issues of fact decided by a jury. Hunte v. Amica Mutual Insurance Co., supra, at 541. The court must view the evidence and all the inferences drawn in the light most favorable to the prevailing party; id.; a standard that requires the court here to consider the evidence on damages in the light most favorable to the defendants.
The plaintiff presented evidence at trial that she incurred medical bills of $22,016.81 after the motor vehicle collision that was the subject of this lawsuit. She also lost a week of work. The medical bills fell into several categories: hospital and doctor bills incurred soon after the collision; physical therapy within the next two months; chiropractic treatment five to twelve months later; four MRIs taken in September 2000, April 2001, September 2001, and January 2002; and examinations, tests, and surgery for hand and wrist problems.
More than $9,000 of the medical bills related to plaintiff's claim of hand and wrist pain. Plaintiff testified at trial that she placed her right wrist in front of her to brace herself on the dashboard at the time of the collision, but as defendant points out she did not immediately complain of wrist or hand injury or pain. Moreover, she had problems with her upper right extremity before the accident. She told the surgeon who performed carpal tunnel surgery on her that the right arm pain was not the result of a motor vehicle accident and that she was seeing him for a problem for which she had received treatment in the past. There was thus evidence that the jury could have believed to conclude that plaintiff had not proven that the medical bills relating to diagnosis and treatment of her hand and wrist problems were proximately caused by the defendants' negligence.
The jury also heard evidence that plaintiff had pre-existing medical problems that could have accounted for some of her post-collision pain, and that she was in a second motor vehicle collision two years later. The defendant's expert testified that the only injury causally connected to defendants' negligence was a cervical condition that should have resolved itself in several weeks. The jury might therefore have reasonably concluded that plaintiff did not meet her burden of proving that all the remaining medical bills were causally related to defendants' negligence. The jury thus had bases in the evidence to conclude that plaintiff had not proven all her claims for medical expenses. The evidence, moreover, supported a jury finding as to the amount of damages it awarded. Thus, the court concludes that there is no basis for setting aside the verdict as to amount or granting the plaintiff's motion for additur.
Finally, the court must address the defendants' objections to certain items sought in plaintiff's bill of costs.
1. Difficult cases where a defense has been interposed.
Section 52-257(a) of the General Statutes provides, as one of the taxable fees in civil actions that "[t]he prevailing party in any such civil action shall receive, by way of indemnity, the following sums: . . . (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars." Although the trial here was not lengthy, and the subject matter of the case — personal injury after a motor vehicle collision, is frequently litigated, several factual aspects of this case rendered it a difficult one: pre-existing medical conditions and prior surgery, subsequent motor vehicle collision, and difficulty in proving which conditions related to defendants' negligence. The court overrules this objection and awards $200.
2. Reasonable attorneys fee pursuant to General Statutes § 52-192a(b).
Section 52-192a(b) allows costs for a reasonable attorneys fee of $350 if plaintiff recovers more than sought in an offer of judgment. That is not the case here, however, and this objection is sustained.
3. Witness fees for doctors Paret and Costanzo, pursuant to General Statutes § 52-257(b)(1).
The plaintiff's request for expert witness fees for doctors Paret and Costanzo raises interesting legal questions on which there is divergent trial court opinion. Dr. Paret testified at trial as an expert witness for the plaintiff, and the plaintiff seeks costs for the doctor's trial appearance, including his travel time, hours court was in recess before and during his testimony on the day he testified, and his preparation time. Dr. Costanzo, a chiropractor who treated the plaintiff, attended portions of the trial but did not testify. The plaintiff seeks costs for the time Dr. Costanzo spent in the courtroom.
The plaintiff's bill of costs cites General Statutes § 52-257(b)(1) as authority for an order that defendants to pay witness fees to doctors Paret and Costanzo. That statute provides as follows: "(b) Parties shall also receive: (1) For each witness attending court, the witness' legal fee and mileage; . . ." Although plaintiff submitted a bill for $47 from a state marshal for serving a subpoena on Dr. Paret, it is not clear if that bill included a tender of witness and mileage fees.
Yet plaintiff obviously seeks more than the marshal's fee. She claims $2,400 for eight hours that Dr. Costanzo was in the courtroom, $1,700 for two hours that Dr. Paret spent preparing to testify, and $9,000 for nine hours that Dr. Paret's spent traveling to and from court, waiting in court to testify, and testifying on the witness stand The defendants do not challenge an award of costs for Dr. Paret's testimony, but they dispute the hourly rate he is seeking or his right to be paid for time preparing to testify, traveling to and from court, or waiting in court. They also assert that no fee is payable to Dr. Costanzo because he did not testify at trial. They rely on § 52-260(f) of the General Statutes for their objection to the breadth of plaintiff's claim. That statute provides as follows:
When any practitioner of the healing arts, as defined in section 20-1 . . . 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 the practitioner of the healing arts . . . and taxed as part of the costs in lieu of all other witness fees payable to the practitioner of the healing arts . . .
Any time spent by an expert testifying at trial is probably preceded by many more hours outside court to obtain the information that provides the factual basis for the expert's opinion testimony, to analyze that information and develop the opinion, to prepare a report summarizing the opinion, to respond to discovery requests from opposing parties, and to prepare to testify at trial. Expert witnesses should anticipate these demands on their time. Some of the expert's pretrial time is compensable to the expert under other provisions of law, such as time spent in a deposition or responding to discovery requests. See, e.g., Practice Book § 13-4(3) and General Statutes §§ 52-149a and 52-260(f). The defendants claim, however, that the only trial costs permitted under § 52-260(f) are for the time that the expert actually spends on the witness stand.
The question presented to the court then, is the meaning of the phrase contained in § 52-260(f) "a reasonable fee to be paid to the practitioner of the healing arts and taxed as part of costs." The statutory language itself does not resolve the question. The court must therefore engage in
a reasoned search for the intention of the legislature . . . to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, [the court must] look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general Subject Matter.
Wasko v. Manella, 269 Conn. 527 (2004).
See Public Acts 03-154, which provides as follows:
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.
In M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996), the Supreme Court construed the statutory language to preclude an award of costs for the time that a real estate appraiser, for which § 52-260(f) also authorizes an expert witness fee, had spent preparing a written appraisal report detailing his conclusions:
Although it is undoubtedly true that some or all of the work done by a real estate appraiser in preparing a report will provide the basis for the appraiser's testimony, that fact alone lends no support to the plaintiff's claim because, as we have previously stated, litigants in this state have long been held responsible for the payment of their own litigation expenses absent a clear expression of legislative intent to the contrary.
Id., 718. The DeMatteo opinion is obviously grounded in the so-called "American rule," long followed by the courts of this country, that a prevailing party is not entitled to a court award for payment of its litigation expenses except where expressly authorized by statute. Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997).
After a thorough and persuasive analysis of the record and briefs and arguments of the parties in DeMatteo, the court in Rolfe v. New Britain General Hospital, 47 Conn. Sup. 296, 790 A.2d 1194 (2001), concluded that DeMatteo did not specifically address or consider the exact question presented here. Rather, that court construed DeMatteo as precluding an award of costs for the time that an expert witness spent developing its expert opinion, as opposed to the limited time the expert spent preparing to answer questions at trial:
the Supreme Court in DeMatteo was not required to decide, and did not decide, whether the "reasonable fee" a court may allow to an expert witness who "is summoned to give expert testimony in any action or proceeding" may include some amount for preparation time. Rather, it was asked to decide, and did decide, that a "reasonable fee" for a testifying expert did not include the cost of preparing a report, prior to his testimony, which was admitted into evidence at trial. The court's observation that "it is undoubtedly true that some or all of the work done by a real estate appraiser in preparing a report will provide the basis for the appraiser's testimony" . . . does not transform the case from what the record shows it is, a request for payment for an expert's report, to a request for payment for the expert's time to prepare for his testimony at trial.
Id., 301.
The trial bench has disagreed about the application of the DeMatteo decision and the validity of the Rolf analysis. This court finds Rolf persuasive because that court integrated its analysis of § 52-260(f) with the provisions of Practice Book § 13-4(3)(A), which deals with paying an expert's deposition expenses, and federal cases construing the analogous federal rule. 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."
One trial court has opined that the DeMatteo decision "appears somewhat incorrect in stating that the express terms of the statute treat as taxable `only those costs that arise from an expert's testimony at trial,'" because the statute, read literally "instead authorize[s] the recovery of a `reasonable fee,' which the statute does not define, when certain designated experts are `summoned to give expert testimony in any action or proceeding.'" Maulucci v. St. Francis Hospital, Superior Court, judicial district of Hartford, Docket No. CV 97-0573645S (May 21, 2001, Schuman, J.) ( 29 Conn. L. Rptr. 604). Yet that court joined others holding themselves bound by DeMatteo to deny requests for time an expert witness spends preparing to testify. See, e.g., Alswanger v. Smego, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 125294 (October 12, 2001, Tierney, J.) ( 30 Conn. L. Rptr. 529) ("[Legislature] knew how to add preparation costs if it wanted to do so").
Other trial courts, however, have reasoned that DeMatteo does not apply to the time that an expert covered by § 52-260(f) spends preparing to testify. One rationale employed by these courts is that " DeMatteo is factually distinguishable because it does not deal directly with the issue of whether an award of reasonable preparation costs for expert medical witnesses is appropriate." Leveille v. Fishman, Superior Court, judicial district of Hartford at Hartford, Docket No. 540229 (November 19, 1998, Lavine, J.) ( 23 Conn. L. Rptr. 425). Preparing a report, these cases reason, is different from preparing to testify. Another justification, advanced to support costs for preparing for a deposition but equally applicable to trial witnesses, is that "without preparation, the witness would be reviewing documents and exhibits during the deposition [or trial], thereby wasting the time of the parties and the attorneys whose fees might be greater the more hours it took to depose the expert." Holland v. Wucik, Superior Court, judicial district of New London at New London, Docket No. 558827 (May 30, 2003, Hurley, J.T.R.) ( 34 Conn. L. Rptr. 686), citing Rolfe v. New Britain General Hospital, 47 Conn. Sup. 296, 790 A.2d 1194 (2001).
The statutory language provides an additional reason to construe the statute in this manner. Section 52-260(f) specifically encompasses not just the amount to be taxed, but also the " fee to be paid . . . in lieu of all other witness fees payable" to the expert witness. At a minimum the reference to "all other witness fees payable" means that plaintiff could not pay its expert the statutory travel and witness fees provided under General Statutes § 52-260(a). Despite the nominal amount of the fees allowed under subsection (a) of § 52-260, it scarcely makes sense to conclude that the legislature intended expert witnesses not to receive any fee at all for travel. The more logical conclusion is that the legislature intended the witness fee provided under subsection (f) to include a fee for travel. Moreover, if the "reasonable fee" of subsection (f) includes travel time, then defendants' argument that subsection (f) only allows costs for actual testimony must fail.
Although the term "witness fees" might refer to the witness fees authorized by General Statute § 52-260, the language does not expressly limit itself in such a manner, but refers to "all other witness fees payable."
Section 52-260(a) of the General Statutes provides as follows: "The fees of a witness for attendance before any court, the General Assembly or any committee thereof, when summoned by the state, or before any legal authority, shall be fifty cents a day, and for travel to the place of trial, except as provided in section 54-152, shall be the same amount per mile as provided for state employees pursuant to section 5-141c."
This court has previously concluded that the legislative history of § 52-260(f) shows that "it was enacted to facilitate the obtaining of physician testimony by imposing judicial control over the amount of fee necessary to pay such a witness for expert testimony." Schwartz v. Singer, Superior Court, judicial district of Litchfield, Docket No. CV00-0083763S (January 10, 2003, Frazzini, J.) ( 33 Conn. L. Rptr. 658). The statute therefore appears to limit the amount that an expert witness covered by the statute can be paid by either party for testifying, a construction of the statute supported by its legislative history. DeMatteo reasoned that under the "American rule" a party is responsible for its litigation expenses unless specifically authorized otherwise by statute; but if time that an expert spends preparing, traveling, or waiting to testify are not taxable costs under § 52-260(f), the statute would also preclude the prevailing party from paying the expert for those expenses. 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. Yet as in this case, experts sometimes charge a lesser fee for preparation time, and often for travel or waiting time, than for time spent on the witness stand This court thus concludes that time an expert witness covered by § 52-260(1) spends preparing to testify, traveling to and from court, or waiting in court to testify are included in the "reasonable fee to be paid . . . and taxed . . ." The objection is overruled as to the time Dr. Paret spent preparing to testify, traveling to and from court, and waiting to testify.
When the legislature first enacted this statute, as Public Act 67-263, Harold Yudkin from the New Haven County Bar Association testified before the Joint Committee on Judiciary and Governmental Functions that:
I appear in favor of this bill. It covers 2 problems: the real estate appraiser and the physician. The pracitical [sic] trial lawyer has a problem in getting a physician to court. I've had to pay $350 to a physician to appear in court for a half day. I think there has come a time when the courts should have the ability to determine the fee that should be payable to a physician. CT Page 9859
Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 1, 1967 Sess., p. 254. Representative Carrozzella, speaking on the floor of the House in support of the bill, stated as follows:
Mr. Speaker, there has been some difficulty with respect to the testimony gotten from Physicians and Real Estate Appraisers, each one' [sic] one has a different fee. It has caused some difficulty to the litigants. The purpose of this bill is to allow the court to set what it believes to be a reasonable fee to be paid to those Physicians and Real Estate Appraisers.
12 H.R. Proc., Pt. 5, 1967 Sess., p. 2162.
Plaintiff claims a fee for Dr. Paret's testimony at the rate of $1,000 per hour for time actually testifying, waiting to testifying, or traveling and $850 per hour for preparation time. The cornerstone of the expert witness statute is that the fee be reasonable. No showing was made as to why the amounts claimed are reasonable. The court does not conclude that such a fee could never be reasonable, only that there was no such showing here. The court awards a witness fee of $5,400.
The witness fee for Dr. George Costanzo, however, is governed by the recent amendment to § 52-160(f). Public Acts 01-32 changed the eligible beneficiaries under the statute from those persons "summoned to give" expert testimony to one "gives" expert testimony. This court has previously held that this act precludes an award of fees under the statute to a non-testifying expert witness. See Schwartz v. Singer, Superior Court, judicial district of Litchfield, Docket No. CV00-0083763S (January 10, 2003) ( 33 Conn. L. Rptr. 658). This objection is sustained.
The following amounts are therefore allowed as costs in this matter: 52-257 52-257 52-257 52-257 52-257 52-257 52-257 52-257 52-257 52-260 52-25776.74
Complaint, General Statutes § (a) $ 19.00 Entry fee, § (b)(6) 190.00 Marshal fee for serving complaint, § (b)(6) 154.70 Proceedings before trial, § (a) 50.00 Trial of issue of fact, § (a) 75.00 Difficult case in which defense was deposed, § (a) 200.00 Marshal fee for serving subpoena on Dr. Paret, § (b)(6) 47.00 Documented investigative costs, § (b)(11) 200.00 Costs for taking in-state depositions of defendants, § (b)(3) 60.00 Witness fee for Dr. Paret, § (f) 5,400.00 Trial exhibits, § (b)(5) _________ TOTAL $6,472.44 For the reasons stated above, plaintiff's motions for additur and to set aside the verdict are DENIED, defendants' objections to plaintiff's bill of costs are SUSTAINED in part and DENIED in part, and costs are allowed as set forth above.BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT