Opinion
No. CV-02-0389926-S
April 19, 2007
MEMORANDUM OF DECISION CONCERNING BILLS OF COSTS
The parties in this medical malpractice action tried this matter before a jury in January 2007. The jury returned a verdict in favor of the defendants, Daniel Ciaburri, M.D. and David Robbins, M.D. and against the plaintiffs, a husband and wife. Thereafter, the defendants St. Vincent's Medical Center and Dr. Robbins filed bills of costs in accordance with the applicable statutes. The costs have not been taxed by the clerk as provided for in Practice Book § 18-5. The plaintiffs have filed certain objections to the defendants' bills of costs, but not within the fourteen-day period set forth in Practice Book § 18-5(a). Therefore, the court will decide the issues raised by the plaintiffs' objections on the merits.
The plaintiffs object to St. Vincent Medical Center's bill of costs to the extent that the bill claims costs for the time taken by an expert witness who testified at trial to prepare for his deposition and his trial testimony. Specifically, St. Vincent's claims as taxable costs the amount of $1,050.00 for Paul Preissler, M.D.'s preparation for his deposition and the amount $700.00 for his preparation for his testimony at trial. The plaintiffs assert that such fees are improper.
As the prevailing parties, the defendants are entitled to certain fees under General Statutes §§ 52-257(a) and (b) and 52-258. The plaintiffs' objection to St. Vincent's bill of costs raises the issue of whether a prevailing party can recover expert witness preparation costs under General Statutes § 52-260(f), which concerns witness fees. The Supreme Court construed § 52-260(f) in M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 674 A.2d 845 (1996). In that case, the court held that "[b]y its express terms, § 52-260(f) treats as taxable only those costs that arise from an expert's testimony at trial. Furthermore, the plaintiff points to nothing in the legislative history of § 52-260(f) to suggest that the legislature intended to convey a broader meaning than is imparted by the plain statutory language . . . 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." (Citations omitted.) Id., 717-18. Accordingly, the Supreme Court upheld the trial court's denial of expert witness preparation costs. Accord Poulin v. Yasner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X08CV0141928 (November 18, 2001, Adams, J.) ("On October 1, 2001 Public Act 01-32 made changes to General Statutes §§ 52-260(f) and 52-257 regarding fees and costs for medical expert witnesses. The fact that the legislature has subsequently addressed the subject of expert compensation without providing for preparation time, persuades this court that fees for such time should not be taxed as costs").
That statutory subsection provides as follows: "When any 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, psychologist or real estate appraiser 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, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser."
In Maulucci v. St. Francis Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-97-0573645-S (May 21, 2001) [ 29 Conn. L. Rptr. 604], a medical malpractice action, the court (Schuman, J.) denied the preparation fees of two of a defendant's expert witnesses based on the Supreme Court's holding in M. DeMatteo Construction Co. v. New London, supra, 236 Conn. 717. The court opined, however, that "[t]he Supreme Court 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.' The express terms of § 52-260(f) instead authorize 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.' Nonetheless, this court is bound by DeMatteo. Its reasoning remains sound. There is no clear expression in § 52-260(f) of the proposition that expert witness preparation costs are taxable. Absent such clear expression, the general rule prevails; litigants, even when prevailing, must bear their own preparation costs." Id.
This court agrees with Judge Schuman that DeMatteo is controlling on this issue. Therefore, St. Vincent's claim in their bill of costs for the preparation fees of Dr. Preissler for his deposition testimony and trial testimony in the total amount of $1,750.00 are denied.
The plaintiffs also object to the bill of costs filed by Dr. Robbins. Particularly, the plaintiff's claim that Dr. Robbins is not entitled to tax as costs the following: (1) Steven Novella, M.D.'s preparation time for his deposition testimony and trial testimony in the total amount of $1,750.00; (2) the jury fee in the amount of $350.00; (3) undocumented investigative costs; and (4) travel time and the cost of cabs, train and meals incurred by Linda Gillam, M.D. Further, the plaintiffs' assert that Dr. Gillam's expert witness fee is unreasonable.
For the same reasons the court denied as costs Dr. Preissler's preparation time, the court denies the claim that Dr. Novella's preparation time for his deposition and trial testimonies. In any event, Dr. Robbins appears only to be claiming as taxable costs the fee for Dr. Novella's trial testimony in the amount of $4,000.00. The plaintiffs have not claimed the fee to be unreasonable, and the court finds the amount to be a reasonable fee.
Concerning the jury fee, the plaintiffs claim that the cost should be denied because it is not statutorily authorized. The jury fee in civil actions is set forth in General Statutes § 52-258. That statute provides, in relevant part, that "[t]he jury fee shall be taxed in favor of the party paying the jury fee in the bill of costs in the action, if a final judgment thereon is rendered in his favor." Id. Based on the clear language of the statute, the jury fee in the amount of $350.00 is a taxable cost.
The plaintiffs assert that Dr. Robbins for investigative costs and expenses in the amount of $200.00 should not be awarded as taxable costs in this case because the defendant hasn't support the claim with any documentation. "[D]ocumented costs and expenses, not exceeding the sum of two hundred dollars," constitute taxable costs. General Statutes § 52-257(11). Dr. Robbins has failed to submit with his bill of costs any documented investigative fees. Therefore, the court denies Dr. Robbin's claim for investigative costs and expenses m the amount of $200.00.
The plaintiffs object to Dr. Robbins' claim for multiple deposition costs where there was a continuation of a deposition. For example, Dr. Robbins claims the following in his bill of costs: "Deposition of Dr. Stern part 1 $40.00; Deposition of Dr. Stern part 2 $40.00."
The defendant is entitled to tax as costs "for each deposition taken out of state, forty dollars, and for each deposition within the state, thirty dollars." General Statutes § 52-257(2). The statute is silent concerning Dr. Robbins' claim by way of his bill of costs that he is entitled to tax costs in the stated amounts for each time a deposition is continued and taken. The express language of the statute is limited to "each deposition." The court finds that to be a clear expression that the deposition costs are taxed only once, and not each and every time a continued deposition is taken. Dr. Robbin's claims for taxable deposition costs are denied to that extent.
The plaintiffs' final claims relate to Dr. Robbin's expert witness at trial, Dr. Gillam. Dr. Robbins' bill of costs relating to Dr. Gillam is in the total amount of $4,586.54. Dr. Gillam's invoice submitted with the bill of costs itemizes that amount as follows: trial testimony $4,500.00 (includes travel time); cabs $41.00; train $31.00; and meals $14.54. The plaintiffs assert that costs for travel time, cabs, trains and meals are not taxable under § 52-257, and that her in-court testimony was at most three hours in duration.
The court agrees with the plaintiffs that costs for travel time, cabs, trains and meals are not taxable. As previously addressed, witness fees concerning witnesses such as Dr. Gillam are governed by General Statutes § 52-260(f), not § 52-257. The practice of healing arts, as used in § 52-260(f) includes the practice of medicine. General Statutes § 20-1. In accordance with § 52-260(f), the court determines a reasonable fee for Dr. Gillam's testimony to be in the total amount of $2,500.00.
The plaintiffs' objections to the bills of costs submitted by the defendants, St. Vincent's Medical Center and Dr. Robbins, are sustained in part and overruled in part. Costs shall be taxed concerning St. Vincent's bill in the total amount of $5,367.73. Costs shall be taxed concerning Dr. Robbin's bill in the total amount of $11,459.30. The court orders that the costs be taxed consistent with this opinion.