February 12, 2014
KIMBERLY KACZMARCZYK and JEFFREY KACZMARCZYK, Plaintiffs,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
Submitted: November 11, 2013.
Upon Defendant's Motion for Costs – GRANTED, in part.
Richard A. Zappa, Esquire.
David L. Baumberger, Esquire.
FRED S. SILVERMAN, Judge.
1. This is a breach of contract case involving Defendant's alleged failure to cover Plaintiff's medical bills stemming from an August 4, 2009 car crash. On October 9, 2013, the jury returned a verdict for Plaintiff. On October 23, 2013, Plaintiff timely filed a motion for costs in accordance with Superior Court Civil Rule 54 and 10 Del.C. 8906. Defendant responded November 11, 2013.
2. Plaintiffs request $3, 500.00 for Dr. Glassman's testimony, $3, 500.00 for Dr. Bandera's testimony, $3, 000.00 for Dr. Grossinger's testimony, and $1, 360.00 for Dr. Gamboa's testimony. Plaintiffs also seek $335.50 for court costs.
3. Defendant first argues that each fee is excessive. Defendant also disputes each doctor's invoice as too general, because each invoice merely lists a flat fee with no explanation or breakdown of how time was spent. Defendant contends Plaintiffs should be awarded $1, 500.00, each, for Drs. Glassman and Grossman, which is in line with earlier holdings by this court. Defendant objects to Dr. Bandera's charges entirely as cumulative and unnecessary. Alternatively, Defendant calls for the fee to be reduced to $1, 500. Lastly, Defendant objects to Dr. Gamboa's fee, as the verdict suggests the jury rejected Dr. Gamboa's opinions regarding Plaintiff's lost wages.
4. Superior Court Civil Rule 54(d) permits costs "as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment." Amounts awarded and denying costs are matters of judicial discretion.
5. Expert witness fees are "limited to time spent attending court for the purpose of testifying" and reasonable costs incurred in traveling to and from the courthouse. "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 schedule." When determining reasonable fees to award medical experts, the court often defers to the Medico–Legal Affairs Committee of the Medical Society of Delaware. In 2002, the Committee recommended a $1, 300.00 to $1, 800.00 flat fee per half day. Adjusted for inflation,  a reasonable half-day rate in October 2013 is between $2, 208.00 and $2, 808.00. That seems a reasonable fee, taking everything: the work, the opinion, the verdict, etc., into account. Accordingly, the fees for the three doctors are unreasonable and each is reduced to $2, 800.
6. Defendant offers no authority for disallowing Dr. Bandera's fee for being cumulative evidence. The court has, however, held unnecessary testimony as uncompensable. McMillan limited costs where the defendant hired an expert from Atlanta, Georgia who was significantly overqualified for the situation. The court found the plaintiff should not be held responsible for defendant's choice of an unnecessary, exorbitant expert. McMillan does not address a situation where no witness is necessary because he would be cumulative. Regardless, the court tacitly addressed Defendant's argument when it admitted Dr. Bandera's testimony over objection. As his testimony was allowed, his fee is compensable.
7. Similarly, Defendant offers no authority for excluding Dr. Gamboa's costs. Nothing suggests reimbursement of costs is related to a witness's effectiveness. Rather, costs are allowed "as of course." Accordingly, Dr. Gamboa's fees are compensable. Further, Defendant does not dispute the amount's reasonableness. Plaintiffs can recover $1, 360.00 for Dr. Gamboa's testimony.
8. Defendant also does not dispute Plaintiffs' request for costs. Plaintiffs can, therefore, recover $335.50 in court costs.
9. Based on the foregoing, Defendant's Motion for Costs is GRANTED in part. Defendant is awarded the following costs:
$ 2, 800.00
$ 2, 800.00
$ 2, 800.00
$ 1, 360.00
Total Costs Awarded:
IT IS SO ORDERED.