IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUANITA ROBERSON,
Plaintiff,

V. C.A. No. Nl6C-05-276 VLM

BRUCE G. LAIRD,

Defendant.

Subrnitted: August 4, 2017
Decided: August l(), 2017

M

AND NOW TO WIT, this 10th day of August, 2017, upon consideration of
PlaintiffJuanita Roberson’s Motion for Costs, Defendant Bruce G. Laird’s Response
to Plaintist Motion for Costs, and the record in this case, IT IS HEREBY
ORDERED that PlaintifF s Motion for Costs is GRANTED, in part, and DENIED,
in part, for the following reasons:

F actual and Procedural Backgrouml

l. On July 24, 2017, after a one-day trial, a Superior Court jury returned
a verdict in favor of Plaintiff Juanita Roberson in the amount of $60,000.00. The
lawsuit alleged that Defendant Bruce Laird Was negligent in operating his motor

vehicle, causing Plaintiff, a passenger in her husband’s vehicle, to suffer personal

injuries when Defendant’s vehicle abruptly struck the left side of Plaintiff s vehicle.
Her husband and co-Plaintiff, Colie Roberson, settled his claim shortly before trial.

2. On July 31, 2017, Plaintiff filed the pending Motion for Costs. Plaintiff
moves to recover the following costs: (1) $3,000.00 for expert testimony of Conrad
King, M.D.; (2) $3,500.00 for expert testimony of Mark Eskander, M.D.; (3)
$455.80 for Dr. King’s deposition transcript; and (4) $501.80 for Dr. Eskander’s
deposition transcript The total amount sought in the Motion equals $7,457.60.

3. On August 4, 2017, Defendant filed his Response to Plaintiff’ s Motion.
In his response, Defendant concedes Plaintiff’s entitlement to both deposition
transcript fees; however, Defendant argues that the costs sought for both experts’
testimony are excessive Defendant contends that Dr. King’s fee should be reduced
to $375.00 and that Dr. Eskander’s fee be reduced to $563.00.

Contentions of the Parties

4. Plaintiff’ s Motion sets forth the above dollar values and summarily
argues that Plaintiff is entitled to the above costs under Delaware Superior Court
Civil Rule 54(d) & (h) and 10 Del. C. § 8906. Plaintiff attaches to her Motion
invoices from both doctors corroborating the requested costs.

5. Defendant contends that both expert fees should be reduced to $375.00

and $563.00, respectively Defendant’s arithmetic derives from the reasoning of the

Superior Court in Smith v. Paul J. Renzi ]\Jasonry.l Following the Smith Court’s
reasoning, Defendant argues, yields the above dollar values that Defendant
maintains are reasonable
Standard of Review

6. Rule 54(d) states that “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.”2 The prevailing party is entitled
to recover costs for expert witnesses “testifying on deposition” under Rule 54(h) and
10 Del. C. § 8906, provided that the deposition testimony is introduced into evidence
at trial.3 Section 8906 assigns the duty to fix costs for expert witnesses to the Court
in its discretion.4

Discussion

7. Defendant’s position is that the Court’s reasoning in Smith yields a
reasonable result in this case. In Smith, the plaintiff was awarded a jury verdict in
excess of $700,000.00 after a one-and-a-half-week trial. In the ensuing motion for

costs, the plaintiff sought costs totaling $25,786.79, including costs for two expert

 

1 2016 WL 1591030(De1. Super. Mar. 24, 2016).
2 DEL. SUPER. Cr. Civ. R. 54(d).
3 10 Del. C. § 8906 (2013 & supp. 2016);Ru1e 54(h).

4 § 8906. See also Smith, 2016 WL1591030, at *1.
3

medical witnesses whose video trial depositions were admitted at trial. The fee for
both experts for roughly two hours of video deposition testimony was $6,000.00 and
$2,500.00, respectively. Looking to the Medical Society of Delaware’s Medico-
Legal Affairs Committee guidelines from 1995, the Court extrapolated the 1995
customary fees for expert medical testimony using the most recent U.S. Bureau of
Labor Statistics’ medical care consumer price index. The Court determined that a
reasonable fee for the two experts was $1,725.00 and $975.00, respectively

8. While the reasoning in Smith is sound, the Court is not bound to follow
that Court’s particularly methodology. Under § 8906, the Court has discretion to fix
the costs taxable to the non-prevailing party. “There is no fixed formula for
evaluating medical expert witness fees.”5 The Court finds that the facts of Smith
differ from the present case in scope and, therefore, sz`th is distinguishable on the
facts of that case. As such, the particular methodology chosen in Smith is instructive,
but ultimately proves an inapt approach to the nature of the present case.

9. Notably, in this case, both medical experts testified in anticipation of
trial as to both Plaintiff Juanita Roberson’s claim as well as her husband’s claim.
However, the deposition testimony for Colie Roberson was not introduced into

evidence_a prerequisite to the shifting of costs under Rule 54(h)-because his

 

5 Smith, 2016 WL 1591030, at *2 (citing Foley v. Elkton Plaza Assoc., LLC, 2007 WL 959521, at
*2 (Del. Super. Mar. 30, 2007)).

claim was settled on the morning of trial. As such, the Court finds that the
appropriate fees for the two experts’ testimony in this case is half of their respective
fees; i.e., $1,500.00 and $1,750.00, respectively.

10. Dr. King’s deposition was read into the record at trial. His deposition
lasted 63 minutes. Forty-one pages of the 76-page deposition transcript concern
Plaintiff Juanita Roberson’s claim, while the remaining 35 pages address her
husband’s later-settled claim. Dr. King assessed a $3,000 flat fee for his deposition
testimony. This fee is not itemized.

11. Dr. Eskander’s video deposition was played at trial. His deposition
lasted 45 minutes. Approximately half of the deposition concerns Plaintiff Juanita
Roberson’s claim, while the other half concerns her husband’s claim. Dr. Eskander
assessed a $3,000 per hour (minimum one hour) fee for his testimony. An additional
$500 fee was assessed because the deposition was conducted by video. The fee is
similarly not itemized.

l2. The approach taken in Smith is one of myriad ways to address the taxing
of costs to the non-prevailing party. Perhaps the oldest among these varied
methodologies is the story of the Judgment of Solomon. This parable is frequently
invoked to evince the prudent exercise of logic to reach a reasonable conclusion.

The expression, “splitting the baby,” derives from this antediluvian allegory. Its

principle teaching endures because it straddles two polarities and forces the poles
together in what is hopefully a sage compromise

13. Before such a comprise is attained, however, the Court pauses to
highlight, from a procedural perspective, that the prevailing party is entitled to
recover costs for expert witnesses under Rule 54(h) only “if the deposition is
introduced into evidence.”6 Here, Plaintiff seeks to essentially recover fees for her
husband’s settled claim. But, because his claim was settled, the deposition testimony
attributable to his claim was not admitted into evidence at trial. Thus, this Court
finds that ordering the recovery of costs associated with her husband’s settled claim
goes against the clear language of both Rule 54(h) and § 8906.

14. Since it was only Plaintiff Juanita Roberson’s claim that went forward
to trial, recovery for the costs of her expert witnesses is appropriate Rather than
delving into the customary fees of medical experts, an area in which the Court is ill-
equipped to elucidate, the Court will follow Solomonic reason and halve the
respective fees on the basis that approximately half of each experts’ testimony
concerned Plaintiffs husband’s claim. Thus, the costs taxable to Defendant under
Rule 54(h) and § 8906 for Dr. King’s deposition testimony is $l,500.00. Further,
the costs attributable to Defendant for Dr. Eskander’s video deposition testimony is

$1,750.00.

 

6 Rule 54(h) (emphasis added).

Conclusion
15. For the foregoing reasons, the Court, in its discretion under Rule 54(h)
and 10 Del. C. § 8906, finds the following fees taxable to Defendant:
i. $1,500.00 for Conrad King, M.D.’s deposition testimony;
ii. $1,750.00 for Mark Eskander, M.D.’s deposition testimony;
iii. $455.80 for Dr. King’s deposition transcript;
iv. $501.80 for Dr. Eskander’s deposition transcript.
16. The total cost taxable to Defendant is $4,207.60. Therefore, Plaintiffs
Motion for Costs is GRANTED, in part, and DENIED, in part.

IT IS SO ORDERED.

¢/N//

judge vivian L. Medinii

oc: Prothonotary
cc: All Counsel of Record (via e-filing)

