                              SUPERIOR COURT
                                   of the
                            STATE OF DELAWARE
Jeffrey J Clark                                                  Kent County Courthouse
Judge                                                                 38 The Green
                                                                    Dover, DE 19901
                                                                 Telephone (302)735-2111

                                  March 1, 2017


Edward C. Gill, Esq.                                   David C. Malatesta, Jr., Esq.
Law Office of Edward C. Gill, & Associates             Kent & McBride, P.C.
16 North Bedford Street                                824 North Market Street
Georgetown, DE 19947                                   Suite 805
                                                       Wilmington, DE 19801

Monica E. O’Neill, Esq.
Four Penn Center
1600 JFK Blvd., Suite 620
Philadelphia, PA 19103

                  RE: Robert Bangs v. Diana & Dawn Follin
                      K15C-05-008 JJC

Counsel:

        This premise liability matter was tried by a jury during the week of January 23,
2017. Defendants, as the prevailing parties, seek recovery of costs pursuant to
Superior Court Civil Rule 54. The Court has reviewed Defendants’ motion for costs
and the Plaintiff’s response. While the majority of the costs sought in this case are
unopposed, Plaintiff objects to the award of expert fee reimbursement for the
Defendants’ liability expert, Mr. Hrobak. Section 8906, of Title 10, Delaware Code
provides for the inclusion of expert fees in an assessment of costs after trial. Plaintiff
objects, however, alleging a lack of detail submitted by the Defendants in support of
the request.
         The Court agrees that the invoice submitted does not sufficiently detail or
support the expert fees sought. The burden is on the prevailing party to justify and
substantiate the award of costs by both hourly rates (testimony versus travel) and
specification as to the amount of time spent.1             Here, the invoice does not itemize
hourly rates applicable to trial or travel, or offer a breakdown between trial testimony
and travel time. As the prevailing party, Defendants are permitted these costs at the
discretion of the Court,2 but must furnish the Court with an itemization by rate and
time spent before such expenses will be awarded. Accordingly, the Court will defer
its award of costs in this case to permit the Defendants time to supplement their motion
with sufficient detail to justify the award of expert fees for Mr. Hrobak’s trial
testimony, as well as his travel time to and from Court.
         Expert fees for the testimony for the Defendants’ medical expert, Mr. Hrobak’s
mileage and meal expense, and court costs are all recoverable in this case in the amount
requested. If Defendants continue to seek expert fee reimbursement for Mr. Hrobak,
they must furnish the Court with sufficient substantiation for these fees by no later than
March 9, 2017. Thereafter, if opposed, Plaintiff must respond by no later than March
16, 2017. At the conclusion of the submission, the Court will issue an order of final
judgment, inclusive of awardable costs.
         IT IS SO ORDERED.
                                                              /s/Jeffrey J Clark
                                                                     Judge




         1
             Russo v. Medlab Clinical Testing, Inc., 2001 WL 34082277, at *4 (Del. Super. Nov. 14,
2001).
         2
         See Dunning v. Barnes, 2002 WL 31814525 (Del. Super. Nov. 4, 2002) (recognizing the
discretion afforded the Court in such an award).

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