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Ambrosio v. Drummond

Superior Court of Delaware

June 12, 2017

NOEMI VAZQUEZ AMBROSIO, Plaintiff,
v.
WILLIAM DRUMMOND, DELAWARE DEPARTMENT OF SAFETY AND HOMELAND SECURITY, DELAWARE STATE POLICE TROOP 6, Defendants.

          Date Submitted: May 10, 2017

         On Plaintiffs Motion for Costs GRANTED

          ORDER

          CALVIN L. SCOTT, JR. JUDGE

         1. This personal injury action was tried before a jury on April 24, 25, and 26 2017.

         2. Plaintiff filed a Motion for Costs pursuant to Superior Court Rule 54, 10 Del. C. §§ 5101 and 8906 on May 3, 2017. Plaintiff seeks costs associated with litigation, totaling $4, 016.25.

         3. Defendants filed their Opposition on May 10, 2017. The core of Defendants' Motion is that the Plaintiff's $3, 000.00 expert fee for Dr. Bruce Grossinger's live testimony is unsubstantiated and unreasonable pursuant to Delaware law.

         4. It is up to the Court to determine whether to award costs under 10 Del. C. § 5101 and Superior Court Rule 54(d).[1] Additionally, expert witness fees are "fixed by the Court in its discretion."[2]

         5. Under Delaware law, "reimbursement for expert testimony encompasses deposition testimony which is introduced into evidence as well as trial testimony."[3] Similarly, "[a]n expert may also be compensated for 'reasonable and ordinary' traveling expenses, but he should not be compensated for such at his hourly testifying rate. An expert should not be compensated for 'time spent listening to other witnesses for "orientation, " or in consulting or advising a party during a trial'."[4]

         6. This Court will not grant an "award of costs, however, if the request for a certain fee is not substantiated by the prevailing party."[5] In scenarios, like this case, "a plaintiff must supply the Court with an hourly rate in order to receive costs."[6]

         7. Although the Court agrees that costs are appropriate in this matter, the Court agrees with Defendants that Plaintiff has not submitted an invoice that sufficiently supports the expert fees sought. The invoice submitted as Exhibit C to Plaintiff's Motion does not itemize hourly rates for travel versus trial, or breakdown the amount of time spent for testimony versus travel. Rather, the invoice states that Dr. Grossinger is owed $3, 000.00 for his live testimony.

         8. "When determining reasonable reimbursement for expert costs, the court must 'recognize that a significant disruption to a physician's practice occurs when a physician is called to testify as an expert witness and that such testimony is important to the court since it assists the trier of fact and serves a significant public interests'."[7]

         9. The trial court does not have a "fixed formula" to determine reasonable expert fees.[8] In 2002, this Court has determined that $1, 800 was appropriate for an hour and a half of testimony plus a half-day of travel time.[9] Similarly, in 2003, the Court found that $2, 000.00 was appropriate for three hours of testimony and two hours of travel."[10] In Delaware, "[w]hen a physician testifie[s] as an expert, for three hours or less, a minimum witness fee should be allowed . . . based upon a flat amount for one-half day interruption in the physician schedule."[11]

         10."When determining reasonable fees to award medical experts, the court often defers to the Medico-Legal Affairs Committee of the Medical Society of Delaware."[12] This Court in 2014 held that based on the Committee's recommendation in 2002, adjusted for inflation, that $2, 208.00 to $2, 808.00 was a reasonable fee for Dr. Grossinger on a half-day rate.[13]

         11.In 2016, this Court determined that "based upon the growth rate, the appropriate medical expert fee ranges are: $2, 752.10-$3, 810.60 ...


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