Opinion
No. CV 07-5003992-S
September 16, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S BILL OF COSTS
On July 12, 2010, the court accepted the jury's verdict in favor of the defendant, Joel Wilken, D.O., and entered judgment in his favor. Pursuant to Practice Book § 18-16, the defendant submitted his Bill of Costs related to this matter on August 3, 2010, and is seeking fees and costs in the amount of $12,817.50. The fees include expert witness fees for medical testimony offered at the trial, as well as other statutorily allowed items. The plaintiff is objecting to the fees for the medical testimony, the fees for depositions taken both in-state and out-of-state, the $200 extraordinary case fee, and the cost for the enlargement of exhibits which were used at the time of the trial.
The actions against the defendants, Robert Debiase, M.D., Bristol Cardiovascular Associates, P.C., and Bristol Hospital were withdrawn prior to the commencement of trial. Only the action against the defendant, Joel Wilken, D.O. went forward.
The defendant's initial request for costs was $13,417.50, but filed an amended bill of costs on August 10, 2010.
DIFFICULT/EXTRAORDINARY CASE
General Statutes § 52-257(a)(3) provides that "[t]he fees of parties in civil actions in which the matter in demand is not less than fifteen thousand dollars shall be . . . in difficult or extraordinary cases in the superior court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars." This case involved a claim of medical malpractice, resulting in an alleged wrongful death, involving complex medical issues requiring the testimony of seven expert witnesses. The trial consisted of two weeks of evidence. The court finds that a $200 allowance is warranted.
DEPOSITIONS TAKEN IN-STATE and OUT-OF-STATE
General Statutes § 52-257(a) 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)(2) of that statute provides, in relevant part: "[p]arties shall also receive . . . for each deposition taken out of the state, forty dollars, and for each deposition within the state, thirty dollars." The defendant is seeking costs for six depositions taken in-state, namely, Dawn Duperry-Young, Sondra Duperry-Brodeur, Robert Brodeur, Charlene Bailey, Joel Wilken, D.O., and Franklin A. Michota, Jr., M.D. He is also seeking costs for three depositions taken out-of-state, namely Robert H. Blum, M.D., Franklin A. Michota, Jr., M.D., and Edward Catherwood, M.D.
The plaintiff objects to the defendant seeking costs for any deposition that was not noticed by this defendant, and is also objecting to the cost for the deposition of Dr. Michota taken in-state, on the basis that the deposition was noticed by the plaintiff for the purpose of taking testimony for trial.
The statute which allows for costs for depositions does not distinguish between depositions noticed and taken by the prevailing party, those taken by the losing party, or those taken by a co-defendant. See Mayne v. Hindin, Superior Court, judicial district of Danbury, Docket No. 034001845S (November 29, 2007) (where the court interpreted General Statutes § 52-257(b)(2) to allow for the costs by the prevailing party for depositions regardless of which party issued notice of the deposition). There is nothing in the statute, however, which provides for costs for a deposition taken for the purpose of trial testimony.
Because the in-state deposition of Dr. Michota was for the purpose of trial testimony, the court will disallow that cost. The court shall allow the cost for five in-state depositions and three out-of-state depositions.
EXPERT WITNESS TRIAL EXPENSES
The defendant is seeking fees for the trial testimony of his experts, Kenneth Miller, M.D., Kenneth Donovan, M.D., William Bradbury, M.D., and Bradford Sherburne, M.D. The plaintiff objects to these costs claiming that the expenses are either impermissible as they seek expenses in connection with trial preparation, travel expenses and/or transportation, or they are based upon an unreasonable hourly rate. She further contends that the defendant has not met his burden of proving these costs.
General Statutes § 52-260(f), concerning "Witness Fees," 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 . . ." "It is clear that the language of § 52-560(f) neither authorizes a reasonable fee for an expert's trial preparation time as distinguished from his or her in court trial testimony, nor expressly authorizes costs for an expert's travel, transportation and hotel costs. Thus . . . by its express terms, § 52-560(f) treats as taxable only those costs that arise from an expert's testimony at trial." (Internal quotation marks omitted. Emphasis added.) Smith v. Andrews, 289 Conn. 61, 87, 959 A.2d 597 (2008).
The defendant states in his reply in support of his bill of costs that mileage and trial preparation are not included in the fees requested. Three out of four of the experts charged an hourly fee and requested compensation for the time spent in traveling to the courthouse and for waiting to testify, while one of the experts charged a flat fee.
Although there had been a split of authority in the Superior Court as to whether expert preparation time should be included in the costs awarded, it would appear that Smith v. Andrews has resolved that issue. Smith has answered the question of whether expert preparation time is taxable in the negative. ("Absent such an express legislative provision [to treat as taxable those costs that are not directly related to the expert's testimony], we find no reason to abrogate this state's long-standing adherence to the American rule that litigants are responsible for the payment of their own litigation expenses." Id. 87.) But no appellate authority answers the question whether travel and waiting time of an expert are properly includible as taxable costs.
There appears to be no basis — either based upon logic or the language of the statute — to treat the fees of an expert for testimony differently depending on whether the fee is based on a flat fee, per diem, one-half day or hourly rate. The issue for the court is whether the fee, however calculated, is reasonable. Thus, if the expert charges a flat fee, or fee per day or per one-half day, whatever is done during that time period, as long as it is directly related to the expert's appearance and testimony in court is taxable as a cost. The expert who charges hourly and the party who pays him or her and seeks to tax those charges as costs pursuant to § 52-260, should be treated the same way, and the reasonable charges directly related to the expert's appearance and testimony in court should likewise be treated as a taxable cost. See Flores v. Jenison, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01-0278648 (June 23, 2004) [ 37 Conn. L. Rptr. 328] ("The travel time to and from court and time reasonably spent in court waiting to testimony would seem to be part of `a reasonable fee' to be paid to the practitioner").
Because the fees sought relate only to the trial testimony and thus are allowable as permissible costs, the court shall address the plaintiff's second argument that the fees are at an unreasonable hourly rate. The reasonableness of the fees 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 in Brought v. Batson, Superior Court, judicial district of Danbury, Docket No. CV 020347176 (December 17, 2003). Those factors are: "(1) witness' 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; and (7) other relevant factors." See also, Flis v. Conn. Gastroenterology Consultants, P.C., Superior Court, judicial district of New Haven, Docket No. CV 02 0469142 (July 13, 2007) [ 43 Conn. L. Rptr. 774].
All four experts testified at trial as to the fees they were charging for their court appearance. The defendant's damages expert, Kenneth Miller, M.D., an oncologist who works at Dana Farber Cancer Center in Boston, charged a $3,000 flat fee for his appearance in court. There was no cost submitted for his trial preparation or his mileage expense. Kenneth Donovan, M.D., charged $300 per hour for his three hours in court, and two additional hours for his travel time to and from New London to the courthouse, for a total of $1,500. The fee did not include trial preparation time.
Dr. Donovan actually submitted a bill for seven hours, but the defendant reduced it to five hours.
William Bradbury, M.D., submitted an invoice for $3,450 for 5.75 hours, which amounts to a fee of $600 per hour. His time included his travel time from Norwich to the courthouse and back, as well as his time in court, part of which was a court break.
Bradford Sherburne, M.D., submitted a bill for 2.5 hours at a rate of $800 per hour, for a total of $2,000. Dr. Sherbourne is a physician with board certifications in three different specialties. Again, his fee includes only his trial time and travel time in connection with his court testimony and no trial preparation.
Although the plaintiff contends that the defendant failed to meet his burden of proving these costs, all four experts testified to these costs at trial. Moreover, the defendant provided statements with his Bill of Costs from each medical expert.
In considering each of the experts' fees and applying the seven factors set forth above, the court finds the hourly fees of all four physicians to be reasonable.
EXHIBIT ENLARGEMENTS
The defendant is also seeking an award of $2,242.50 for exhibits which were used as demonstrative evidence at trial. The defendant submitted the invoice for the costs of each of these exhibits. The plaintiff in her objection argues that they were "wholly unreasonable."
General Statutes § 52-257(b)(5) provides for costs to the prevailing party for "maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum . . ." The exhibits were used at trial, the defendant argues, to enable the jury to "better understand the complex medical issues critical to the case," and were marked for identification. "Only maps, plans or photographs used at trial as either exhibits formally offered into evidence, marked for identification, used by counsel for opening or closing arguments, or used by counsel for trial demonstrations, may be taxable as costs." Alswanger v. Smego, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05-CV 92 0125294.
The court finds that the exhibits were used to assist the jury in the matter, and that the amount sought is reasonable.
CONCLUSION
For the foregoing reasons, costs in the amount of $12,787.50 are awarded to the defendant.