Opinion
No. DBD CV 03 4001845 S
November 29, 2007
MEMORANDUM OF DECISION RE OBJECTION TO BILL OF COSTS
This action arose out of allegations of dental malpractice. Following trial and a jury verdict for the plaintiff in the amount of $2,600, a bill of costs was filed by the plaintiff seeking a total of $46,542.34. Subsequent to the taxation of costs by the clerk, the defendant filed an objection to the taxation pursuant to Practice Book § 18-5(b). The parties appeared before the court on October 1, 2007 and argument was heard regarding the objection.
LAW
"The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997); see also Chrysler Corp. v. Maiocco, 209 Conn. 579, 590, 552 A.2d 1207 (1987). "This rule is generally followed throughout the country." Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 72. "There are [a] few exceptions. For example, a specific contractual term may provide for recovery of attorneys fees and costs . . . or a statute may confer such rights." (Citation omitted.) Id., 73. "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 . . . Furthermore, because costs are the creature of statute . . . unless the statute clearly provides for them courts cannot tax them." (Internal quotation marks omitted.) Ludington v. Sayers, 64 Conn.App. 768, 779, 778 A.2d 262 (2001); see also, M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 715, 674 A.2d 845 (1996). "Therefore, the issue in this case is a determination of the statutory construction of both General Statutes §§ 52-257 and 52-260." Alswanger v. Smego, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 920125294 (October 12, 2001, Tierney, J.). "An examination of General Statutes § 52-257 reveals that most of the awards are automatic assessments, not involving the discretion of the court. The principal exceptions to this general rule are subsection (d) concerning minor specific matters and subsection (e) reserving to the court its time-honored discretion in taxing costs in actions in which equitable relief is granted." Fengler v. Northwest Connecticut Homes, Inc., 215 Conn. 286, 291, 575 A.2d 696 (1990). "This is a medical malpractice action and did not involve equitable issues." Alswanger v. Smego, Superior Court, Docket No. X05 CV 92 0125294.
In this case, the statutory authority claimed for awarding costs is found in General Statutes § 52-257 and § 52-260(f). The defendant has objected to a number of the various costs claimed by the plaintiff. Each will be addressed categorically.
General Statutes § 52-257(a) generally sets forth the costs available to the prevailing party in a civil action in which the demand is not less than $15,000. Section (b) further provides, in relevant part: "(5) Parties shall also receive . . . (2) for each deposition taken out of the state, forty dollars, and for each deposition within the state, thirty dollars . . . (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 . . . (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." It is noteworthy that although the jury verdict was for $2,600, it is the amount in demand which controls the assessment of costs.
General Statutes § 52-260(f) provides: "When any practitioner of the healing arts, as defined in section 20-l, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, 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 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 or real estate appraiser."
I COSTS FOR SUBPOENAS SERVED UPON WITNESSES WHO DID NOT ATTEND COURT
The plaintiff has claimed the cost for subpoenas issued during the pendency of the proceeding pursuant to General Statutes § 52-257(b)(6). In Honan v. Dimyan, 63 Conn.App. 702, 778 A.2d 989 (2001), the court addressed the issue and allowed the recovery of the cost of twenty subpoenas although only one of the twenty individuals subpoenaed actually testified. It noted that "the prevailing party may receive costs for subpoenas. The plaintiffs provided no legal support for their contention that the costs for the subpoenas of a witness not used in a party's case-in-chief are not recoverable and we can find none . . . [T]he costs fall within § 52-257(b)(6) because that section allows a prevailing party to recover costs for subpoenas, and no statute or case law limits the application of that subsection." Honan v. Dimyan, supra, 712. The defendants have cited Ludington v. Sayers, 64 Conn.App. 768, 778 A.2d 262 (2001), as authority for the proposition that a court cannot tax costs of a witness who does not appear at trial. In Ludington, the expert witness' testimony was presented through videotape. However that case is distinguishable in that it deals with the fees charged by an expert witness for his/her testimony pursuant to § 52-260(f). The cost of the subpoenas claimed by the plaintiff is taxable under § 52-257(b)(6). The objection is overruled as to all items under section i of the bill of costs except for the following claimed items:
1. Additional Service Fee for February 6, 2004 — $45.00
2. Additional Fees for September 7, 2006 — $17.00
3. Surveillance Fee for Dr. Anthony Camillo — $170.00
4. Additional Fees for September 7, 2006 — $38.00
5. Additional Fees for November 14, 2006 — $11.00.
There is insufficient documentation or evidence of these costs to determine whether they are within the penumbra of § 52-257(b). The objection as to items 1-5 above is sustained.
II COSTS FOR PRESENTATION OF EXPERTS BY VIDEOTAPED DEPOSITION
The defendant objects to the costs relative to the production and presentation of evidence to the jury in the form of the videotaped deposition of expert witnesses. The costs in the amount of $1,706.42 are more specifically set forth in section l of the bill of costs. The defendant claims that such costs are not authorized by General Statutes § 52-257(b)(12) as claimed by the plaintiff. The court disagrees and finds these costs to be both reasonable and permissible.
III PREPARATION FEES OF PLAINTIFF'S EXPERT FOR TRIAL AND DEPOSITION A Dr. Larz Spangberg
The defendant objects to the fees claimed by the plaintiff's expert Dr. Larz Spangberg relative to his preparation for testimony both at deposition and trial. Plaintiff contends that such fees are allowable pursuant to § 52-260(f). Specifically, Dr. Spangberg charged $10,933.60 relative to his trial testimony, broken down as follows: $2,100 for a records review, $2,400 for pre-trial meeting, $5,000 for his court appearance (at a rate of $2,500 per day), $494.60 for airfare, $379 for a rental car and $560 for a hotel. "The issue whether the time spent by an expert in preparing his or her testimony is a taxable cost has not been addressed by the appellate courts in Connecticut, and the decisions of the Superior Court have seen merit on both sides of the question." Poulin v. Yasner, Superior Court, complex litigation docket at Norwalk, Docket No. X08 CV 01 41928 (November 18, 2003, Adams, J.) ( 36 Conn. L. Rptr. 30). A review of the case law leads the court to the conclusion that the fees and expenses charged by the expert for his preparation relative to his trial testimony are not allowable as costs. See M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 718, 674 A.2d 845 (1996). While the court does note that there are recent superior court decisions which have opened the door to the claim for such fees and expenses, this court finds M. DeMatteo Construction Co. remains as controlling precedent on the issue. Hence, any preparation time for trial testimony is not an allowable cost. Therefore, all the costs listed above regarding Dr. Spangberg's trial testimony are disallowed except the fee for his court appearance which must be judged based on the seven factors set forth in Fisher-Price, Inc. v. Safety First, Inc., 217 F.R.D. 329, 333 (D.Del., 2003). The application of these criteria in Connecticut has been analyzed by Judge Bellis in Brought v. Batson, Superior Court, judicial district of Danbury, Docket No. CV 020347176 (December 17, 2003, Bellis, J.) ( 36 Conn. L. Rptr. 189), and more recently by Judge Corradino in Flis v. Conn. Gastroenterology Consultants, P.C., Superior Court, judicial district of New Haven, Docket No. CV 02 0469142 (July 13, 2007, Corradino, J.) ( 43 Conn. L. Rptr. 774). Those factors are: "(1) witness's area of expertise; (2) expert's training and education; (3) prevailing rates of other comparably respected available experts; (4) complexity of the discovery responses provided; (5) fee actually charged to party who retained the expert; (6) fees traditionally charged by experts on related matters; (7) other relevant factors." Flis v. Conn. Gastroenterology Consultants, P.C., supra, 43 Conn. L. Rptr. 775. In considering those factors, and noting that Dr. Spangberg's testimony and presence in court consumed the better part of two trial days, the court finds his fee of $5,000 to be reasonable.
See e.g., Carrano v. Yale-New Haven Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 94 1312707 (May 30, 2007, Arnold, J.) ( 43 Conn. L. Rptr. 575), and cases cited therein. However, there are other recent cases which hold the opposite. See, e.g., Leone v. Ciaburri, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0389926 (April 19, 2007, Tyma, J.) (43 Conn. L. Rptr 273). Despite the contention of the defendant in his brief that the split of authority at the lower court level has been resolved, this court does not find that to be the case. The court sides with those cases such as Leone which view M. DeMatteo Construction Co. as controlling until overturned by another case or through legislative action.
However, there remains the issue of preparation time for his deposition testimony. While the defendant has cited Alswanger v. Smego, supra, Superior Court, Docket No. X05 CV 92 0125294, for the proposition that preparation costs for depositions are not statutorily allowable, that case and others addressing the issue fail to consider Practice Book § 13-4(3). That section specifically states that in the context of discovery, "[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." In Rolfe v. New Britain General Hospital, 47 Conn.Sup. 296, 790 A.2d 1194 (2001), Judge Shortall thoroughly examined the effect of Practice Book § 13-4(3), General Statutes § 52-260(f) and the holding of DeMatteo on the issue of costs for the preparation time of an expert at a deposition. In that case Judge Shortall noted that "[a]s indicated previously, DeMatteo itself suggests that § 52-260(f), concerning fees to be paid to expert witnesses, has no application to deposition costs . . . Properly considered, Practice Book § 13-4(3) does not conflict with any statutes governing the payment of the costs of litigation. Rather, it supplements and clarifies them in an area of practice and procedure which is within both the constitutional and statutory purview of the Superior Court." Id., 307-08.
Practice Book § 13-4 provides in part as follows: "Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Section 13-2 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
"(1)(A) A party may through 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 pursuant to subdivision (1)(A) of this rule in the manner prescribed in Section 13-26 et seq. governing deposition procedure generally.
"(2) A party may discover facts known or opinions held by an expert who had been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only as provided in Section 13-11 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Based on the analysis in Rolfe, this court finds that the fees for the preparation time of Dr. Spangberg relative to his deposition, while not allowable as a statutory cost, can be ordered paid to the plaintiff pursuant to Practice Book § 13-4(3). Pursuant to such analysis, and after considering the factors set forth in Fisher-Price as to the appropriateness of the claimed fee, the court finds Dr. Spangberg's fee of $1,650 for the deposition to be reasonable. However, the claimed costs of $23.20 for parking are disallowed.
B DR. LOUIS THEODOS
Plaintiff has also claimed the deposition and trial testimony fees of Dr. Louis Theodos in the amounts of $4,000 and $14,000, respectively. Dr. Theodos filed a motion to enforce expert fees (#321) seeking payment of those amounts based on a rate of $1,000 per hour. An invoice has also been provided through the bill of costs detailing the breakdown of the fees claimed.
Defendant objects to the payment of this fee on two grounds. First, that there has been no payment to date by the plaintiff, and second, the amount of the fee has yet to be determined by the court given the objection raised at trial.
Even if the fee is appropriate for consideration under § 52-260(f) and/or Practice Book § 13-4(3), the issue remains as to the reasonableness of the fee. The court notes that Dr. Theodos testified at the deposition not as an expert, but rather as a fact witness. Accordingly, no fee shall be awarded as costs for the taking of the deposition. As to his trial testimony, the period covering the presentation of his testimony (including necessary breaks) was approximately nine hours. During that testimony he did give expert opinions as he had been disclosed as an expert witness subsequent to the deposition. Having reviewed the motion to enforce the expert fees which was filed at the request of the court, the court finds the hourly rate of $1,000 per hour to be too high under the circumstances. The factors set forth in Fisher-Price dictate that a more reasonable fee of $350 per hour be allowed. Of note again is that a portion of Dr Theodos' testimony at trial was as a fact witness as opposed to an expert witness. Hence a total fee of $2,500 shall be allowed pursuant to § 52-260(f).
IV DEPOSITION FEES OF DEFENDANT'S EXPERTS
Plaintiff has submitted a claim for the fees of the defendant's expert witnesses generated by their deposition. As noted in section m of the bill of costs, Dr. Joseph Piecuch charged $3,000, Dr. Michael Rutberg charged $4,500 and Dr. Nicholas Cucharale charged $1,200. Plaintiff has provided evidence of the payment of each and/or the invoice submitted to the plaintiff by those experts requesting payment. Defendant has objected on the ground that although deposed by the plaintiff, the experts did not testify at trial for the plaintiff and therefore their costs should not be allowed. The fees of the experts referenced above shall be allowed to the plaintiff pursuant to Practice Book § 13-4(3) as discussed above.
V PHOTOCOPY CHARGES
Defendant has objected to the claim for copies in section h of the bill of costs. The copies presented were entered into evidence during the course of the trial and exclusively constitute medical records relative to the plaintiff's treatment and examination. All of the fees charged by the medical providers are within the applicable statutory rate. The fees totaling $83.80 shall be allowed as costs to the plaintiff pursuant to § 52-257(b)(6).
VI COST FOR DEPOSITIONS NOT NOTICED BY PLAINTIFF CT Page 20440
Defendant objects to the claim of the plaintiff for $990 representing the cumulative statutory cost of all of the depositions taken within the state pursuant to § 52-257(b)(2). Section g of the bill of costs itemizes each of the depositions taken for which a claim is made and further identifies whether the deposition was taken by the plaintiff or the defendant. The statute allows the recovery of $30 for each in-state deposition. The defendant notes that the majority of the depositions were noticed by the defendant. However, 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. Accordingly, the objection to this cost is overruled and the cost shall be allowed the plaintiff pursuant to statute.The court also notes that it does not appear the claim of $40 for the taking of one out of state deposition was addressed by the clerk or the parties. To the extent that claim may have been an issue, it too is deemed an allowed cost and is taxed in favor of the plaintiff.
So ordered.