IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

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,

v. C.A. NO.: NlSC-lZ-l36 AML
DR. JOSEPH T. WEST,
CARDIOLOGY CONSULTANTS,
P.A., and CHRISTIANA CARE
HEALTH SYSTEM, INC., a Delaware
Corporation,

\/\/\,/\/\/\/V\./\/\/V\./\/VV\/\/\./

Defendants.

Submitted: December 8, 2017
Decided: March 15, 2018

ORDER

Defendants’ Motion for Costs Pursuant to Superior Court Civil Rule 54 and
10 Del. C. § 8906: Granted in part

l. This 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 flled 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

2. 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 and unnecessary.

3. 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.”1 Although
awarding costs is a matter of judicial discretion,2 the prevailing party in an action
at law generally is entitled to costs as a matter of right.3

4. There are limited circumstances under which this Court will deny a

prevailing party’s motion for costs. For example, “[a] defendant may appropriately

 

1 super Ct. civ. R. 54(d).
2 Olson v. A-Del Constr. Co., Inc., 2014 WL 1325909, *l (Del. Super. Feb. 12, 2014).
3 Bodley v. Jones, 65 A.2d 484, 487 (Del. Ch. 1948).

2

bear his defense costs where a lawsuit is justified because the situation requires a
full explanation from the defendant.”4 This may be the case where the jury finds
both parties equally or nearly equally liable.5 The Court also may consider
whether awarding costs would place a “severe financial hardship” on a plaintiff6
The Court cannot, however, deny costs merely because the parties’ resources are
out of balance or even grossly out of balance.7

5. 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 denying costs.

6. The 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

 

4 Olson, 2014 WL 1325909, *1 (citing Moore v. Garcia, 1995 WL 945553 (Del. Super. July 10,
1995)).

5 See, e.g., Nelson v. Feldman, 2011 WL 531946, *1 (Del. Super. Jan. 26, 2011) (finding the
defendant 49% liable and the plaintiff 51% liable).

6 Id. at *2.

7 Olson, 2014 WL 1325909, *1 (“While it is likely true, as Plaintiffs allege, that Defendant ‘has
resources many times greater than plaintiffs,’ this alone does not justify denying costs.”).

3

”8 Generally, the rate of travel compensation

traveling to and from the courthouse.
is less than testimonial compensation.9 Where an expert’s invoice is vague, the
Court has discretion to deny recovery.10 Similarly, “a party should not be
responsible for its opponent’s choice of an unnecessary . . . expert.”11

7. 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.

8. For 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

 

8 Id. at *2 (internal quotations omitted) (quoting Moyer v. Saunders, 2013 WL 4138116, *1 (Del.
Super. july 24, 2013).
9 See Cooke v. Murphy, 2013 WL 6916941 (Del. Super. Nov. 26, 2013).
10
Id.
11 Olson, 2014 WL 1325909, *1.

preparation for trial. Dr. Smith also requested $1,154 for travel expenses, which
appears reasonable considering his overnight stay and travel from North Carolina.
9. Lastly, Defendants requested $722 for Court filing fees, which

properly are recoverable under Rule 54.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Costs is GRANTED in

part. Defendants shall recover the following costs:

Dr. Fifer’s Trial Testimony: $3,150
Dr. Fifer’s Travel Expenses: $530
Dr. Smith’s Trial Testimony: $1,898
Dr. Smith’s Travel Expenses: $1,154
Court Filing Fees: $722

Total Costs Awarded: $7,454. IT IS SO ORDERED.

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Original to Prothonotary

cc: Richard Galperin, Esquire
Joshua H. Meyeroff, Esquire
Kenneth M. Roseman, Esquire

