CANNON v. STATE FARM MUT. INS. COM., 06C-02-016 JTV (Del.Super. 12-31-2007)

JOAN CANNON, Plaintiff, v. STATE FARM MUTUAL AUTO-MOBILE INSURANCE COMPANY, Defendant.

C.A. No. 06C-02-016 JTV.Superior Court of Delaware, Kent County.Submitted: September 13, 2007.
Decided: December 31, 2007.

Upon Consideration of Plaintiff’s Motion to Recover Costs GRANTED in the Amount of $885.

Keith E. Donovan, Esq., Morris, James, Dover, Delaware. Attorney for Plaintiff.

Brian T. McNelis, Esq., Young McNelis, Dover, Delaware. Attorney for Defendant.

ORDER
VAUGHN, President Judge.

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Upon consideration of the plaintiff’s motion for recover y of costs, defendant’s opposition, and the record of the case, it appears:

1. The plaintiff, Joan Cannon, has filed a motion to recover costs following a jury verdict in her favor. Pursuant to Super. Ct. Civ. R. 54(d),[1] she seeks the following costs.

Complaint Filing Fee $ 175.00
Service of Process Fee — Sheriff Kent County $ 30.00
Service Fee — Delaware Insurance Commissioner $ 25.00
Video Costs to present the testimony of Dr. Dedhia $ 699.15
Deposition of Dr. Lax Dedhia $2,000.00
Total $2,929.15

2. The defendant, State Farm Mutual Automobile Insurance Co., does not dispute the Complaint Filing Fee, Service of Process Fee, or the Service Fee to the Delaware Insurance Commissioner. These costs have been paid.

3. However, the defendant does challenge the “video costs” and the amount claimed for Dr. Dedhia’s deposition. It argues that the costs for the deposition transcript are not recoverable because the transcript is merely duplicative of the video deposition. It also argues that the amount of the expert fee is excessive and unreasonable. The defendant has paid $1,000 for the expert witness deposition fee of Dr. Dedhia.

4. The plaintiff has supplemented the record with a letter re-addressing the

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video deposition fees. Attached to the letter is a more specific breakdown of those fees. It shows that the video costs include a $340 charge for “videotaping and setup” and a $45 charge for “VHS master from DV,” totaling $385. Plaintiff states that the initially billed amount of $699.15 was the entire bill provided by the court reporter for both videotaping and deposition transcript, and that this new bill for $385 represents the video costs alone.

5. The prevailing party to a final judgment generally shall recover costs from the adverse party by an award of the court.[2]
Additionally, Superior Court Civil Rule 54(d) provides costs, within the court’s discretion, to the prevailing party. The court, in its discretion,[3] shall decide the amount of expert witness fees to be taxed as costs.[4] The prevailing party may only recover the reasonable costs it incurred for an expert witness while the witness was testifying, waiting to testify or traveling to testify.[5] Costs spent in trial preparation are not recoverable.[6] Additionally, Superior Court

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Civil Rule 54(h) provides, that “fees for expert witnesses testifying on deposition shall be taxed as costs . . . only where the deposition is introduced into evidence.”[7]

6. When a videotaped deposition is introduced, the cost of recording a videotaped deposition may be recovered by the prevailing party pursuant to Superior Court Civil Rule 54(f).[8] However, the cost of a transcript of that videotaped deposition may only be recoverable if that transcript is introduced into evidence.[9]

7. Videotaping a deposition and preparing a transcript of the deposition are duplicative measures; thus, recovery of both fees is not permitted unless both were introduced into evidence.[10] As stated in Superior Court Civil Rule 54, the prevailing party may recover the cost of videotaping and playing back the deposition video and may recover the cost of preparing the Court’ s copy of the transcript, but only if it is introduced into evidence.[11] Therefore, the plaintiff may recover the costs for “videotaping setup” and “VHS Master from DV” totaling $385. Plaintiffs may not recover costs for the deposition transcript because it was not entered into evidence.

8. According to Policy Recommendations from the Medico-Legal Affairs

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Committee issued dated March 10, 2006,[12] a reasonable medical expert’s fee for a deposition taking up to two hours would be $1,000 and $2,000.[13] The deposition of Dr. Dedhia took approximately one hour at the doctor’s office in the middle of his workday. It appears that the doctor’s $2,000 fee was a flat fee. I will exercise my discretion to allow $1,500 as the amount recoverable by the plaintiff.

9. Therefore, the plaintiff’s motion is granted in the amount of $885.00 ($385 + (1,500.00 — 1,000.)).

IT IS SO ORDERED.

[1] Super. Ct. Civ. R. 54(d) states, “[c]osts shall be allowed as of course to the prevailing party unless the Court otherwise directs.”

[2] 10 Del. C. § 5101 provides: “[i]n a court of law, whether of original jurisdiction or of error, upon a voluntary or involuntary discontinuance or dismissal of the action, there shall be judgment for costs for the defendant. Generally a party for whom final judgment in any civil action, or on a writ of error upon a judgment is given in such action, shall recover, against the adverse party, costs of suit, to be awarded by the court.”

[3] Donovan v. Delaware Water Air Resources Comm’n, 358 A.2d 717, 722-723 (Del. 1976) (holding that Rule 54(d) and § 5101 are consistent in that an award of costs is a matter of judicial discretion). Reaffirmed in Barnett v. Braxton, 2003 Del. Super. LEXIS 279, at *6-7.

[4] 10 Del. C. § 8906.

[5] Midcap v. Sears Roebuck Co., Del. Super. C.A. No. 01C-03-042, Witham, J. (May 26, 2004) (ORDER); Lockwood v. Wyatt, 2006 Del. Super. LEXIS 324, at *3.

[6] Lockwood, 2006 Del. Super. LEXIS 324, at *3.

[7] Additional support found in McKinney v. Brandywine Court Condo. Council, Inc., 2004 Del. Super. LEXIS 311, at *3-4.

[8] Nygaard v. Lucchesi, 654 A.2d 410, 413 (Del.Super.Ct. 1994).

[9] Foley v. Elkton Plaza Assocs., LLC, 2007 Del. Super. LEXIS 80, at *12; Nygaard, 654 A.2d at 413.

[10] Lockwood, 2006 Del. Super. LEXIS 324, at *4; Kerr v. Onusko, 2004 Del. Super. LEXIS 366, at *5; Cimino v. Cherry, 2001 Del. Super. LEXIS 181, at *9 (cites omitted).

[11] Midcap, Del. Super. C.A. No. 01C-03-042.

[12] The Court has referred to the 1995 study in numerous cases as a guidepost. The 2006 study updates the recommended costs.

[13] This figure accounts for the fact that testifying at a trial disrupts a physician’ s patient schedule in addition to accounting for the time actually spent testifying. Midcap, Del. Super. C.A. No. 01C-03-042 (the figures used in this case refer to the previous 1995 study).

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