Opinion
C.A. No. 99C-11-211-JRJ
Date Submitted: November 11, 2002
Date Decided: December 11, 2002
Vincent J.X. Hedrick, II, Esquire Beverly L. Bove, Attorney at Law
Donald M. Ransom, Esquire Casarino, Christman Shalk, P.A.
Dear Counsel:
In follow up to the hearing on the defendant's Motion for Costs, I have reviewed Mr. Ransom's November 11, 2002 letter regarding Dr. Morris' fees. What follows is my decision.
"Witness fees allowed under § 8906 should be limited to time necessarily spent in attendance upon the court for the purpose of testifying." This does not include preparation time. "[T]he allowance of witness fees as court costs does not amount to an attempt by the court to fully compensate a litigant for all the expenses the litigant incurred in obtaining expert testimony." Despite the lack of a fixed formula for determining reasonable expert fees, this Court has frequently used as a reference a 1995 study conducted by Delaware Medico-Legal Affairs Committee which indicates that a reasonable range of fees for court appearances by medical experts is $1,300 to $1,800 per half-day. In the past, this Court has adjusted the $1,300 to $1,800 per half-day figure to reflect changes in the medical care price index. "The Court notes that since 1994 the medical price index has grown approximately 29% as of the end of 2001 according to the U.S. Bureau of Labor Statistics."
Sliwinski v. Duncan, 1992 WL 21132, at *3 (Del.Supr.) (citing Stevenson v. Henning, 268 A.2d 872, 874 (Del.Supr. 1970)).
See id. at *4.
Id. at *3. Sain Preux v. Leap C.A. No. 99C-11-211-JRJ.
Fellenbaum v. Ciamaricone, 2002 WL 31357917, at *6 (Del.Super.); Gerken v. Atkinson, 2002 WL 1832322, at *2 (Del.Super.); Dunckle v. Prettyman, 2002 WL 833375, at *3 (Del.Super.); Clough v. Wal-Mart Stores, Inc., Del. Super. C.A. No. 94C-05-030, Ridgely, P.J. (Sept. 9, 1997).
Id.
Fellenbaum, 2002 WL 31357917, at *6 (citing Gerken, 2002 WL 1832322, at *2.).
In Sliwinski v. Duncan, the Supreme Court held that:
when a physician testifies as an expert, for three hours or less, a minimum witness fee should be allowed based upon a flat amount for a one-half day interruption in the physician's usual schedule. Such minimum allowance would usually be adequate to cover the transportation and waiting time for a local physician and would result in the uniform treatment of many of the witness fees submitted by physicians. In cases where a physician testifies for more than three hours but less than a full day, it would then be appropriate for the Superior Court, in its discretion, to determine a reasonable hourly rate to apply to that part of the testimony which exceeds three hours.
Sliwinski, 1992 WL 21132, at *3.
In this case, Dr. Morris' court appearance was less than three hours in length. Taking into account the 1995 Medico-legal Affairs Committee study and the 29% growth in the medical care price index since 1995, the Court notes that a reasonable range of fees for a court appearance is currently between about $1,677 and $2,322 per half day. The Court also notes that Dr. Morris' fee schedule indicates his regular fee for a half-day court appearance is $2,500. The defendant has requested $1,500 for Dr. Morris' fee, which falls below the above adjusted range of fees for a court appearance.
Based on the foregoing, the Court finds that the defendant's request for $1,500 in costs relating to Dr. Morris' testimony at trial is reasonable and will award this amount. The Court declines to award as costs the fee the defendant paid to the Prothonotary in connection with her appeal of the arbitrator's award.
IT IS SO ORDERED.