Summary
explaining that any fees incurred for an expert witness' trial preparation are not reimbursable
Summary of this case from Rash v. MoczulskiOpinion
C.A. No. 03C-06-043 (JTV).
Submitted: April 27, 2006.
Decided: July 20, 2006.
Upon Consideration of Defendant's Motion For Costs and Expert Witness Fees GRANTED in Part DENIED in Part
Jeffrey J. Clark, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Plaintiff.
Brian T. McNelis, Esq., Young McNelis, Dover, Delaware. Attorney for Defendant.
ORDER
Robert L. Lockwood ("plaintiff") has filed a Motion For Costs and Expert Witness Fees Pursuant to Superior Court Rule 54 and 10 Del. C. §§ 5101 and 8906.
FACTS
Robert L. Lockwood filed a personal injury action against Harold C. Wyatt (defendant"). Trial concluded on April 13, 2006 with the jury returning a verdict in favor of the plaintiff in the amount of $20,000. Because of the verdict in favor of the plaintiff was in excess of the an offer of judgment made by defendant prior to trial, costs may be awarded in this case.
CONTENTIONS OF THE PARTIES
The plaintiff has requested the following costs be reimbursed under the rule and the statutes:
a. Filing and service fees — $205.;
b. Expert fees payable to Dr. DuShuttle for his video trial deposition taken on March 29, 2004-$950;
c. Video fees to Discovery Video for Dr. DuShuttle's Trial Deposition — $420;
d. Transcript for Dr. DuShuttle's Trial Deposition — $126; and
e. Liability expert fees payable to William Sherkey for trial preparation time, court time, waiting, time, and travel time to and from court, and toll costs — $1,147.
In total the plaintiff is asking for a total of $2,848.
The defendant has taken exception to some of the plaintiff's requests. Because the written transcript of Dr. DuShuttle's video deposition was not entered into evidence, the defendant claims that only the video deposition costs are recoverable. The defendant also asserts that the plaintiff is not permitted to recover the costs for Mr. Sherkey's travel and trial preparation costs so that amount should be reduced by $622.
DISCUSSION
The prevailing party in a civil action is entitled to be awarded costs against the adverse party. "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. § 8606.
State v. 0.0673 Acres of Land, 224 A.2d 598 (Del. 1970).
Stevenson v. Henning, 268 A.2d 872 (Del. 1970).
The plaintiff has asked that he be reimbursed for expenses totaling $1,147 for services provided by his liability expert, William Sherkey. This fee includes $170 which Mr. Sherkey's invoice attributes to "trial prep." The prevailing party may only recover the reasonable costs it incurred for an expert witness while the witness was testifying, waiting to testify or traveling to testify. Thus the time that Mr. Sherkey spent preparing for trial is not reimbursable. However, the plaintiff may be reimbursed for any amounts his witness spent traveling to the court in order to testify. Therefore, the amount to reimburse the plaintiff for the services of Mr. Sherkey is $950.
Midcap v. Sears, 2004 WL 1588343 (Del.Super.).
This amount also corrects a mathematical error in the motion.
The plaintiff has also requested reimbursement for the video deposition and transcript of Dr. DuShuttle. Superior Court Civil Rule 54 does permit a plaintiff to recover the cost of preparing the Court's copy of a transcript of a deposition. However, previous decisions by this Court have concluded that awarding costs for the videotaping of a deposition introduced at trial and the preparation of the transcript are duplicative, and therefore both are not permitted. Because the plaintiff introduced Dr. DuShuttle's video deposition at trial, he is not permitted to be reimbursed for the transcript. Thus the amount requested by the plaintiff will be adjusted as to the transcript fee of $126.
Cimino v. Cherry, 2001 Del.Super. LEXIS 181, *9 ( citing Cubberly v. Orr, 1995 Del.Super.LEXIS 469, *6 and Bejger v. Shreeve, 1997 Del.Super. LEXIS 306, *11).
Therefore, the plaintiff's motion is granted in part and denied in part. Fees and costs are awarded in the amount of $2,525.