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In Zakrzewski, however, the Superior Court relied upon the fact that the losing party had first requested the translation services in support of its determination to shift the burden away from the prevailing party.
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C.A. No. 98-C-02-302 RRC
Submitted: September 11, 2000
Decided: November 6, 2000
Upon Defendant's Motion for New Trial or Remittitur. DENIED Upon Plaintiffs' Motion to Assess Interest and Costs. GRANTED IN PART AND DENIED IN PART.
This 6th day of November, 2000, upon consideration of the submissions of the parties, it appears to this Court that:
1. Waldemar Zakrzewski and Helena Zakrzewski (Plaintiffs) brought suit against Matthew E. Dailey (Defendant) for personal injuries and damages sustained by Plaintiff Waldemar Zakrzewski in an automobile accident on February 27, 1996.
2. On August 10, 1998, pursuant to an Arbitration Order, Plaintiff was awarded $36,000. Defendant appealed the Arbitrator's Award and the case proceeded to a two-day jury trial. On August 29, 2000 the jury returned a verdict in Plaintiff's favor for $40,000.
3. On September 11, 2000 Defendant filed a Motion for a New Trial or, in the alternative, Remittitur pursuant to Rule 59(a). Plaintiffs filed a Motion to Assess Interest and Costs seeking reimbursement for: the filing fee of $125 [pursuant to Rule 54(d)]; the Arbitrator's fee of $200 [pursuant to Rule 16.1(h)(4)]; the expert witness fee of Dr. Michael Axe [pursuant to 10 Del. C. § 8906 and Civil Rule 54(h)] of $1,500; Corbett Associates video taping and transcription fee for Dr. Axe amounting to $605.70 [pursuant to Rule 54(f)]; and the Polish interpreter's fees for Christina Elijasz for $740.80 [pursuant to Rule 54(d)]. Plaintiffs' aggregate costs total $3,171.50. (Plaintiff Waldemar Zakrzewski required a Polish speaking interpreter).
Pursuant to Super. Ct. Civ. R. 16.1(h)(4), Plaintiffs seek interest from August 10, 1998 through the date of judgment. Plaintiffs quote the amount of interest on the judgment as $7,380. The aggregate costs and interest Plaintiffs seek is 10,551.50. Following the Motion to Assess Interest and Costs, Plaintiffs filed a Response in opposition to Defendant's Motion for a New Trial or Remittitur.
This Court is not certain how Plaintiff arrived at this interest calculation. The legal rate of interest when multiplied by the Arbitrator's Award does not seem to equal Plaintiffs' stated amount. The parties are to calculate the correct interest (see infra at p. 8).
Plaintiffs Motion to Assess Interest and Costs at 2.
4. When considering a motion for a new trial, the jury's verdict is presumed to be correct. The Court must also determine whether the jury's verdict is against the great weight of the evidence. A jury's verdict should not be disturbed unless it is manifest that it was the result of passion, prejudice, partiality or corruption, or that it was clearly in disregard of the evidence or applicable rules of law. The verdict must be manifestly and palpably against the great weight of the evidence or for some reason, or a combination of reasons, justice would miscarry if it were allowed to stand. Where the evidence results in a verdict that is totally without legal support, justice requires a new trial.
Lacey v. Beck, Del. Super., 161 A.2d 579, 580 (1960).
James v. Glazer, Del. Supr., 570 A.2d 1150, 1156 (1990).
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
McCloskey v. McKelvey, Del. Super., 174 A.2d 691 (1961).
Peters v. Gelb, Del. Supr., 314 A.2d 901 (1973).
5. Defendant's Motion for a New Trial is denied. Defendant argues that the compensatory damages awarded by the jury are "against the great weight of the evidence" presented at trial. However, this Court finds the $40,000 verdict is reasonable and not against the great weight of the evidence. As Plaintiffs note, Defendant admitted negligence at the trial. Defendant called his own expert witness (a doctor) who testified that Plaintiff Waldemar Zakrzewski's left shoulder acromioplasty was causally related to the accident. Defendant's witness, Ali Kalamchi, M.D., also testified that Plaintiff Waldemar Zakrzewski suffered permanent injury to his left shoulder and that his work could be expected to aggravate his symptoms and cause Plaintiff pain. In light of this evidence adduced at trial, the $40,000 jury verdict is reasonable. For this Court to set aside a jury verdict, the award must be "so grossly out of proportion . . . as to shock the Court's conscious and sense of justice." The jury's verdict was not "against the great weight of the evidence" nor does it "shock the conscience of this Court" to warrant a new trial.
Mills v. Telenczak Del. Supr., 345 A.2d 424, 426 (1975); see also Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973).
6. Defendant's argument supporting its Motion for a New Trial also alleges jury prejudice. Defendant asserts that Plaintiff "flagrantly mentioned insurance on many occasions during the trial." While it is true that the Court cautioned the Polish-speaking Plaintiff not to refer to insurance, any prejudice that Defendant suffered was not so great as to warrant a new trial.
Defendant's Motion for a New Trial and/or Remittitur at 3.
Defendant also asserts the jury was prejudiced when "[P]laintiff interjected the severity of his wife's illness, in direct defiance of the Court's admonition [not to mention it]." Plaintiff Waldemar Zakrzewski's testimony that his wife "was on her death bed" was not so prejudicial as to warrant a new trial. As Plaintiff noted, the testimony was in response to a question asked on cross-examination. Further evidence of lack of prejudice to Defendant's claim is found in the fact the jury awarded Plaintiffs wife Helena zero damages on her loss of consortium claim.
Defendant's Motion for a New Trial and/or Remittitur at 3.
7. Accordingly, Defendant's Motion for a New Trial or Remittitur is DENIED.
8. Determining when costs are awarded is a matter of judicial discretion. There may be circumstances under which costs do not go to a party to whom a final judgment is awarded. An award of court costs as a matter of judicial discretion is intended to reimburse the prevailing party for expenses unnecessarily incurred in the assertion of its rights in court.
Donovan v. Delaware Water and Air Resources Comm., Del. Supr., 358 A.2d 717, 725 (1976).
Id. At 723.
Plaintiffs Motion to Assess Costs and Interest is granted in part and denied in part. The assessment of costs against the losing party flows from 10 Del. C. § 5101 and Super. Ct. Civ. R. 54. Rule 54(d) states in pertinent part "[e]xcept when express provision therefor is made either in a statute or in these Rules . . . costs shall be allowed as of course to the prevailing party unless the Court otherwise directs." Under this rule, Plaintiffs are entitled to recover the requested filing fee. Defendant therefore will be assessed the fee of $125.
Super. Ct. Civ. R. 54(d).
The fee for Plaintiffs' medical expert, Dr. Michael Axe, will be borne by the Defendant. Dr. Axe's videotaped deposition was introduced as evidence at trial. Pursuant to Rule 54(h) this fee of $1,500 is assessed to Defendant.
" Expert witness fees. Fees for expert witnesses testifying on deposition shall be taxed as costs pursuant to 10 Del. C. [§] 8906 only where the deposition is introduced into evidence." Super. Ct. Civ. R. 54(h).
See Rowlands v. Lai, C.A. No. 95-C-06-006 Del. Super., 2000 LEXIS 186, at *5 Vaughn, J. (Feb. 23, 2000)(ORDER) (citing the Medical Society of Delaware's Medico-Legal Affairs Committee for guidance in assessing expert witness fees and holding that $550.00 to $1,050.00 for a 2-hour deposition with a $175 to $290 charge for each additional half hour).
9. However, this Court finds the deposition transcript of Dr. Axe's testimony prepared by Corbett Associates duplicative and unnecessary, since Dr. Axe's deposition was introduced through the videotape. A similar situation was addressed by this Court in Bejger v. Shreeve. In Bejger, the cost of the deposition transcripts for two doctors was held not recoverable. The doctors' testimony was introduced through a videotape and the transcribed deposition was not used. This Court held that the transcribed deposition was "duplicative" and would be borne by the adverse party. Thus, in the case sub judice the Corbett Associates fee is duplicative and Plaintiff will be responsible for that extra expense, which totaled $605.70.
Bejger v. Shreeve, Del. Super., C.A. No. 95C-06-104, 1997 Del. Super. LEXIS 306, at *11 Cooch, J. (Apr. 15, 1997)(ORDER).
Id.
10. Superior Court Civil Rule 16.1(d)(5) requires all parties to share equally the cost of compensating the arbitrator. However, Plaintiffs request that Defendant bear the cost of the arbitrator pursuant to Rule 16.1(h)(4). The Rule provides that assessing the arbitrator's fee shall occur where "the party who demands a trial de novo fails to obtain a verdict from the jury or judgment from the Court . . . more favorable to the party than the arbitrator's order. . . ." Here, Defendant, the party who requested the trial de novo, did not obtain a jury verdict more favorable than the arbitrator's order. Pursuant Rule 16.1(h)(4), Defendant is to bear the arbitrator's cost of $200.
Super. Ct. Civ. R. 16.1(h)(4).
11. Plaintiffs' Motion for interest upon the Arbitrator's award of $36,000 is granted. The interest is to be accrued beginning August 10, 1998 through the date of judgment at the legal rate. The parties shall calculate the interest due. This Court recognizes that Defendant did request an earlier trial date. However, the language of Rule 16.1(h)(4) requires the Court to calculate interest from the date of the Arbitration Award to the date of judgment and the Court otherwise exercises its discretion to allow interest from that date.
"If the party who demands a trial de novo fails to obtain a verdict from the jury or judgment from the Court, exclusive of interest and costs, more favorable to the party than the arbitrator's order, that party shall be assessed fees and costs of the arbitration, and the arbitrators' compensation. In addition, if the plaintiff obtains a verdict from the jury or judgment from the Court more favorable than the order of the arbitrator, and it was the defendant who demanded a trial de novo, interest on the amount of the arbitrator's order shall accrue in accordance with 6 Del. C. § 2301 beginning with the date of the arbitrator's order." Super. Ct. Civ. Rule 16.1(h)(4) (emphasis added).
Del. Super. Ct. Civ. R. 16.1(h)(4).
12. Defendant is to bear the cost of the Polish interpreter Christina Elijasz. As Plaintiffs note, Defendant was responsible for originally hiring the interpreter. Thus, it follows that the interpreter's fee of $740 is prima facie reasonable.
13. In sum, Plaintiffs are entitled to be reimbursed for the following:
Filing fee........................................................$125. Arbitrator's fee..................................................$200. Medical Expert fee..............................................$1,500. Polish Interpreter fee............................................$740. Interest on $36,000 from 8/10/98 at the legal rate (to be calculated by the parties.)
14. For the foregoing reasons, Defendant's Motion for a New Trial or Remittitur is DENIED. Plaintiffs' Motion to Assess Interest and Costs is GRANTED IN PART. DENIED IN PART.
IT IS SO ORDERED.