Opinion
No. CV 99 0153255S
May 8, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S SUPPLEMENTAL BILL OF COSTS
The plaintiff brought a medical malpractice against the defendant physician. The court set aside the verdict for the plaintiff as inconsistent with the jury's responses to interrogatories, and entered judgment for the defendant. The plaintiff appealed, and the Appellate Court affirmed the judgment. The plaintiff petitioned for certification to the Connecticut Supreme Court, and the petition was denied. The matter is now before the court on the defendant's motion for review of taxation of costs.
The defendant initially submitted a bill of costs in the total amount of $60,144.98. Following the decision of the appellate court, the defendant submitted an amended/supplemental bill of costs in the amount of $58,674.98. The clerk taxed costs in the amount of $782.08, disallowing fees incurred by the defendant for the depositions of plaintiff's experts, expert witness trial testimony fees, an investigative fee, and an allowance for a difficult/extraordinary case. The defendant requests that this court tax an additional $57,692 to include the expert fees and the difficult/extraordinary case fee.
The difference between the bill of costs submitted on February 2, 2006 and that submitted on September 27, 2007 arose from an additional $30 for and in state deposition and a decrease in an expert witness testimony fee from $38,000 to $36,100.
Difficult Case
Sec. 52-257(a)(3) of the Connecticut General Statutes provides for an allowance not in excess of $200 in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, in the discretion of the court. This case involved claims of medical malpractice and took a number of days to try. The court finds that a $200 allowance is warranted.
Defendant's Experts
The defendant contends that all fees incurred for the experts' preparation for their testimony at trial are taxable costs pursuant to C.G.S. 52-260. Defendant's position is contrary to Connecticut's long-standing adherence to the American rule, which provides that ordinary expenses of litigation are not allowed to the successful party absent a contractual or statutory exception. "It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute." M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 715, 674 A.2d 845 (1996). Also see Moasser v. Becker, 107 Conn.App. 130, 139 (2008). The controlling statute is C.G.S. § 52-260(f) which provides, in relevant part, "[w]hen 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 . . ." (emphasis added).
In Levesque v. Bristol Hospital, Inc., 286 Conn. 234 (2008), the Supreme Court recently settled the question of whether fees for an expert's time preparing for a deposition is a taxable cost, holding that the plain terms of Practice Book § 13-4(3) encompass those costs: "Time spent preparing for a deposition is, literally speaking, time spent in responding to discovery . . ." Id., 259. The court determined that Practice Book § 13-4(3) authorized such an allowance. Moreover, the court reasoned that "the cost associated with the time that an expert spends preparing to be deposed is incurred only because of [the] actions of the opposing party, who is in control of the entire process from the decision to depose the expert to the scope of the material subpoenaed for the deposition, and, thus, the scope of matters into which inquiry will be made as to the length and detail of the questioning at the deposition . . ." Id., 259-60.
P.B. sec. 13-4 provides: (1)(A) A party may though interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (B) Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert witness disclosed . . . (3) Unless 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 subdivisions (1)(B) and (2) of this rule; and (B) with respect to discovery obtained under subdivision (1)(B) of this rule the judicial authority may require, and with respect to discovery obtained under subdivision (2) of this rule the judicial authority shall require, the party seeking . . .
In this court's view, DeMatteo Construction Co. v. New London, 236 Conn. 710, 718, 674 A.2d 845 (1996), not Levesque controls in the case of an expert called to testify at trial. Unlike the situation discussed in Levesque, each party at trial generally exercises control with respect to whether to call its own expert witness and the matters about which the witness is to testify. Here, the issue is the interpretation of C.G.S. § 52-260(f), not P.B. § 13-4. Here, we are dealing with the determination of a reasonable fee to be taxed as part of the costs in lieu of all other witness fees, not a rule authorizing the court to impose a reasonable fee for time spent in responding to discovery.
There is a split of authority among the superior courts on the issue of whether preparation costs for court testimony of an expert witness are taxable pursuant to the statute. In Mayne v. Hindin, CT Page 7976 2007 Ct.Sup. 20434, 44 Conn. L. Rptr. 605, CV 03 4001845 S Connecticut Superior Court Judicial District of Danbury at Danbury (Nov. 29, 2007), Judge Shaban, citing DeMatteo Construction Co. v. New London, supra, determined that fees and expenses charged by the expert for his preparation relative to his trial testimony are not allowable as costs. Judge Adams, in Bonomo v. Kovacs, 2007 Ct.Sup. 19648, 44 Conn. L. Rptr. 492, CV 04 4001273, Judicial District of Stamford-Norwalk at Stamford (Nov. 19, 2007), held that "reimbursement for the time spent in organizing and presenting expert trial testimony . . . is part of a reasonable fee for an expert summoned to give expert testimony in court." In Leone v. Ciaburri, 2007 Ct.Sup. 5571, 43 Conn. L. Rptr. 273, CV-02-0389926, Judicial District of Fairfield at Bridgeport (Apr. 19, 2007), Judge Tyma denied preparation costs for an expert's trial testimony, noting that there is "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 . . . [and] 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."
The expert's invoices submitted by the defendant in the instant case persuade the court that the legislature did not intend that § 52-260(f) encompass costs for preparation. Dr. Kaplan charged a total of $1,500 for trial preparation and two hours of testimony at trial. His rate appears to be $500 an hour. Dr. Sexton charged a total of $10,542 for time spent several months prior to trial, including phone calls, locating and reviewing records, phone conferences with the defendant's attorney, review of the defendant's deposition, several hours re-reviewing records, an aborted attempt to travel to Connecticut, travel to Connecticut, his plane ticket, meals, and parking. His actual in-court testimony was approximately 7 hours. He did not state an hourly rate. Dr. Bono charged $36,100 for one and a half days of travel to Waterbury and court testimony ($11,250), 53.5 hours of trial preparation which involved reviewing the trial testimony notes and transcripts of the plaintiff, the defendant, and the plaintiff's experts ($15,250), 3 hours for reading articles sent to him by one Russell Green ($1,500) and 20 hours of review of the complaint, deposition transcripts of various people, medical records and films ($10,000). His hourly rate is $500 an hour. His in-court testimony lasted 5 hours.
Although the Levesque Court noted that strict construction does not require giving the words of a statute the narrowest meaning of which they are susceptible, this court finds that any interpretation of § 52-260(f) which would extend it to include the charges stated by Doctors Sexton and Bono is clearly outside the purview of the statute and antithetical to the American rule. This court believes that a reasonable fee contemplated by the statute includes the time for in-court testimony or testimony in a deposition for use at trial and for the time it takes the expert to travel to court if there is evidence of the time. There is nothing in the statute that allows for the additional costs the defendant seeks. Moreover, as noted above, any practice of taxing costs for the "preparation" charged by two of the defendant's experts may easily result in a total disregard for the statute and the rule requiring each party to pay its own costs. There is no evidence of how much time was spent in actual travel to court for the day each expert testified. Accordingly, the court taxes costs only for the in-court testimony of these experts.
Dr. Bono's bill indicated that court testimony and travel to Waterbury together took 1.5 days for a total of $11,250, but it did not indicate the time spent in travel. He works at Tufts University School of Medicine in Boston. Moreover, the charge included $2,500 for 5 hours of trial testimony. It is inconceivable that his time traveling from the Boston area to Waterbury would justify an award of almost $9,000.
Deposition of Plaintiff's Expert
The plaintiff objects to taxing costs for the defendant's deposition of the plaintiff's expert witnesses. "The right to costs must be based on some statute or authorized rule of the court." Triangle Contractors, Inc. v. Young, supra, 20 Conn.App. 221; Condon v. Pomroy-Grace, 73 Conn. 607, 614 (1901); Bridgeport Gas Co. v. United Mine Workers, 21 Conn.Sup. 331 (1959). The defendant relies on § 52-260(f) to support his position that he should be permitted an award for the fees he paid in connection with taking the deposition of the plaintiff's experts. Interpreting § 52-260(f) as the defendant urges is contrary to the Levesque decision, wherein the court placed the responsibility for fees incurred in connection with discovery with the party seeking discovery. The court recognizes that there is a split of authority on this issue in the superior court but believes that the better-reasoned decisions on this issue hold that "[t]he costs of deposing an expert disclosed by the opposing party are not taxable." See Alswanger v. Smego, Superior Court, judicial district of Stamford-Norwalk at Stamford, Complex Litigation Docket, X05 CV 92 0125294, 30 Conn. L. Rptr. 529 (October 12, 2001, Tierney, J.) [interpreting recent amendments to General Statutes §§ 52-257 and 52-260(f)]; Poulin v. Yasner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Complex Litigation Docket, X05 CV 0141928, 2003 Ct.Sup. 12999, 36 Conn. L. Rptr. 29 (Nov. 18, 2003, Adams, J.).
The defendant's motion for review of costs is granted in part and denied in part. In addition to the costs taxed by the clerk the amount of $782.08, the following costs are taxed: Expert witness testimony fees pursuant to C.G.S. § 52-260(f): Michael Kaplan, M.D. — $1000; Daniel Sexton, M.D. — $1960; James Bono, M.D. — $2500. Difficult case fee — $200. Total costs — $6,442.08.
CT Page 7978