KATHLEEN L. PHELPS, Individually and as Administratrix of THE ESTATE OF ANTHONY O. PHELPS; MARK S. PHELPS, MATTHEW A. PHELPS, and MEGHAN PHELPS BUEHLER, Plaintiffs,
DR. JOSEPH T. WEST, CARDIOLOGY CONSULTANTS, P.A., and CHRISTIANA CARE HEALTH SYSTEM, INC., a Delaware Corporation, Defendants.
Submitted: December 8, 2017
Abigail M. LeGrow, Judge
Motion for Costs Pursuant to Superior Court Civil Rule 54 and
10 Del C. § 8906: Granted in part
is a medical negligence case arising from the death of
Anthony Phelps following a cardiac catheterization by Dr.
Joseph West. Defendants are Dr. West and his employer
Christiana Care Health System. On November 14, 2017, the jury
returned a verdict for the Defendants. On November 21, 2017,
Defendants timely filed a motion for costs in accordance with
Superior Court Civil Rule 54 and 10 Del. C. §
8906. Defendants seek reimbursement of their filing fees and
their experts' trial testimony fees and costs, namely
$722 in Court filing costs, $9, 135 for Dr. Fifer's trial
testimony and travel expenses, and $6, 050 for Dr.
Smith's trial testimony and travel expenses.
Plaintiffs contend Defendants' motion should be denied,
arguing the parties' relative financial
positions-i.e., a retired widow, a school teacher,
school principal, and vet-tech compared to two medical
corporations and a practicing physician-militates against
awarding Defendants' costs. Plaintiffs also argue the
requests are supported by vague and unclear invoices because
both experts' invoices include duplicative entries for
trial testimony as well as non-compensable trial preparation.
Plaintiffs further argue the Court should not consider Dr.
Smith's costs at all because his testimony was redundant
Superior Court Civil Rule 54(d) provides "costs shall be
allowed as of course to the prevailing party upon application
to the Court within ten (10) days of the entry of final
judgment unless the Court otherwise
directs." Although awarding costs is a matter of
judicial discretion,  the prevailing party in an action at law
generally is entitled to costs as a matter of
There are limited circumstances under which this Court will
deny a prevailing party's motion for costs. For example,
"[a] defendant may appropriately bear his defense costs
where a lawsuit is justified because the situation requires a
full explanation from the defendant." This may be the
case where the jury finds both parties equally or nearly
equally liable. The Court also may consider whether
awarding costs would place a "severe financial
hardship" on a plaintiff.The Court cannot, however, deny
costs merely because the parties' resources are out of
balance or even grossly out of balance.
Here, the jury found the Defendants were not negligent.
Moreover, the jury found Dr. West did not breach the standard
of care in his treatment of Phelps. Unlike the few cases in
which this Court has denied costs to a prevailing party,
Plaintiffs here cannot establish that the jury found
Plaintiffs' case particularly meritorious. Additionally,
Plaintiffs presented no evidence that awarding costs would be
a severe financial hardship. The fact that Defendants
relatively have more resources than Plaintiffs cannot justify
Court therefore is left to consider what amount of costs may
be awarded. In awarding expert witness fees, the amount is
"limited to time spent attending court for the purpose
of testifying and reasonable costs incurred in traveling to
and from the courthouse." Generally, the rate of travel
compensation is less than testimonial
compensation. Where an expert's invoice is vague,
the Court has discretion to deny recovery. Similarly,
"a party should not be responsible for its
opponent's choice of an unnecessary ...
Here, the amount Defendants claimed includes non-compensable
costs. Dr. Fifer's and Dr. Smith's testimonies,
however, were not redundant or unnecessary, so recoverable
costs will be allowed. For Dr. Fifer, the Court will award
the 5.25 hours of courtroom attendance listed on his invoice,
which, at Dr. Fifer's hourly rate, amounts to $3, 150.
The Court will not award the vague and apparently duplicative
"Court testimony" flat fee that Dr. Fifer invoiced.
Defendants offered no explanation of that fee or assurance to
the Court that it did not represent trial preparation costs.
Dr. Fifer also requested $530 for travel expenses. These
costs appear reasonable considering he traveled from
Massachusetts to attend trial.
Dr. Smith, the Court finds his 2.92 hours of trial testimony
is recoverable, which amounts to $1, 898. Again, for the
reasons set forth above, the Court will not award Dr.
Smith's "Trial Daily Fee" or the entries
reflecting his preparation for trial. Dr. Smith also
requested $1, 154 for travel expenses, which appears
reasonable considering his overnight stay and travel from
Lastly, Defendants requested $722 for Court filing fees,
which properly are recoverable under Rule 54.
foregoing reasons, Defendant's Motion for Costs is
GRANTED inpart. Defendants