lN T§H§.`.~ SUPERIOR COURT OF STATE OF DELAWARE
BARRY and CO.$§MHA
SMI§§:‘J§,
Plaintiffs,
C.A. No. N13C-03-252 FWW
PAUL J. RENZI MASONRY, d/b/a
RENZI MASONRY and DEWSON
CONSTRUCTION COMPANY, ]NC., a
Delaware Corporation
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Defendants.
Submitted: February 11, 2016
Decided: March 24, 2016
Upon Plaintiffs’ Motion to Recover Costs
GRANTED, in part, DENIED, in part.
001> ; 'ON AND GR‘HER
Timothy A. Dillon, Esquire, McCann & Wall, LLC, 300 Delaware Ave., Suite 805,
Wilmington, Delaware 9801, Attorney for Plaintiffs.
Kevin J. Connors, Esquire, Marshall Dehnehey Wamer Colerrian & Goggin,
Nemours Building, 1007 N. Orange St., Suite 600, P.O. Box 8888, Wihnington,
Delaware, 19899, Attorney for Defendant Paul J. Renzi Masonry d/b/ a Renzi
Masomy.
`WYH;$L`E§'.IYON, J.
I. Introduction
Before the Court is Plaintiffs’ Motion for Costs following a jury trial during
which the jury awarded Plaintiffs damages to be paid by Defendant Renzi Masonry
dfb/a Renzi Masonry. In total, Plaintiffs request $25,786.79 in costs related to the g
action. The Court applies Super. Ct. Civ. R. 54 and 10 Del. C. § 8906 and finds
that Plaintiffs are entitled to collect $l l,l52.78. Therefore, Plaintiffs’ Motion is
GRANTED, in part, and DENIED, in part.
II. Factual and Procedural Background
A jury trial was held in this case from January 4, 2016 through January 13,
2016.1 The jury found that Paul J. Renzi Masonry d/b/ a Renzi Masomy ("Renzi")
was negligent and that Renzi’s negligence was a proximate cause of Barry Smith’s
injuries. The jury also found that Dewson Construction was negligent but its
negligence was not a proximate cause of Barry Smith’s injuries. The jury awarded
compensatory damages in the amount of $640,000 to Barry Smith and $80,000 to
Corrina Smith for loss of consortium.z
On January 21, 2016, Plaintiffs filed a Motion to Recover Costs pursuant to
Super. Ct. Civ. R.` 54.3 Renzi acknowledges that Plaintiffs are entitled to recover
the following costs:
'11).1. 139.
2 D.I. 140.
3 D.1. 141.
Plaintiffs request $960 for producing ten boards that contained excerpts of
specific witness’s testimony that Plaintiffs’ counsel used as an aid during trial.
Renzi asserts that Plaintiffs’ request for fees for the visual aids are not recoverable
because they were not "necessarily incurred."zs "The cost of presenting trial
exhibits at trial is traditionally borne by the party presenting the evidence.% A
prevailing party may be awarded costs on the principle that costs "are allowances
in the nature of incidental damages to reimburse the prevailing party for
expenses necessarily incurred in the assertion of his rights in court."” The Court
has held where "enlargements [a]re made for the use of the party and not for use by
the court," the costs of the enlargements are not "necessarily incurred."zg Because
the Court finds that Plaintiffs’ enlargements were used to emphasize specific
evidence for the jury and were not for use by the Court, Plaintiffs shall not recover
the costs of the enlargements.
F . T ravel Expenses for Deposz'z‘z`on of Dr. Steven Valerztz`no, D. O.
Plaintiffs assert that they are entitled to recover $36.18 for the mileage
Plaintiffs’ counsel amassed while traveling to the deposition of Defendants’
medical eXpert, Dr. Steven Valentino, D.O. Renzi argues that Plaintiffs’ request
25 Def.’s Response Br., at 1[1[ 7-8.
26 See .S‘wererz v. Sheehy, 2001 WL 1783076, at n. 4(Del. Super. Dec. 12, 200l)(citing Sliwz`nskz`
v. Durzcan, Del. Supr., No. 26l, l99l, Christie, C. J. (June 15, 1992) (ORDER)).
27 Donovan v. Del. Water and Az`r Res. Comrn ’rz, 358 A.2d 717, 723 (Del. l976)(quoting Peytorz
v. Willz`am C. Peyz‘on Corp., Del. Supr., 23 Del.Ch. 365, 8 A.2d 89 (l939))(emphasis in original)r
28 Kerr v. onusk@, 2004 wL 2744607, ar *2 (1)@1. Super. oct 20, 2004)(ciring Ma¢oni v. price
Motorcczrs, 1993 WL 542571, at * 2 (Del. Super. Dec. l, 1993)).
ll
for mileage fees for Plaintiffs’ counsel’s travel to the deposition of Dr. Valentino is
not recoverable. Renzi asserts that Plaintiffs’ counsel traveled only thirty-five
miles to the deposition which is less than the mileage from Wilmington, Delaware
to Dover, Delaware, and the need to obtain out-of-state medical experts is
commonplace due to the small medical community in Delaware.” The Court
agrees with Renzi. Plaintiffs shall not recover the mileage expenses for traveling
to the deposition of Dr. Valentino. »
G. Transcrilvts of Dr. Onyewu’s Via’eo Trz`al Depositz`on, Dr. Rastogi ’s Vicleo
Trz`al Deposz`z‘z'on and Rosalyn Pierce ’s Vz'deo Trial Deposz`tz`on `
Plaintiffs request to recover $827.68 for the transcript of Dr. Onyewu’s
video trial deposition; $690.40 for the transcript of Dr. Rastogi’s video trial
deposition; and $564.00 for the transcript of Rosalyn Pierce’s video trial
°deposition. Renzi contends that the costs of the transcripts are not recoverable
because the experts’ depositions were introduced into evidence via video at trial.3°
Generally, a plaintiff may recover the cost of transcribing a deposition that
was introduced as evidence at trial.gl However, the Court has held that where the
expert testilied at trial via videotape, transcription of the expert’s testimony is
duplicative for purposes of recovering the transcription cost.” Because the Dr.
29 Def.’s Response Br., at ‘1[1] 7-8.
3°1¢1 ar~ns.
31 See Super.__Ct._ Civ. R. 54(f)("'l`he fees paid court reporters for the Court's copy of transcripts of
shall :i¢.=§it. be taxable CGS!SS unless introdi;_€_>'€§_. into _. .""`§:,
i§€§.-‘z:atzz=w@ §:;‘a¢:»;»;,¢. 200 *iaz;;'.f, wj:i`ii_zl§zss
18 ldef.'“-`~s -as; §__'5;
Plaintiffs are entitled to recover for the time Mr. Leisenring spent traveling
to and from the courthouse, the time Mr. Leisenring spent in the courthouse while
waiting to testify and the time Mr. Leisenring spent testifying.lg Plaintiffs are not
entitled to recover costs for the Mr. Leisenring’s preparation time.zo This includes
time spent researching. Therefore, the Court must exclude: $l,500 for "trial
preparation" on January 5, 20l6; $2,250 for "trial preparation" on January 6, 2016; l
and $256.25 for "research."
The bill reflects that Mr. Leisenring charged Plaintiffs $3 75 per hour and he
spent eight hours "travel[ing] to/Hom Wilmington for trial, preparation with
Attorney Dillon, and testify[ing] at trial." Based upon Mr. Leisenn`ng’s education
and experience, $3 75 per hour is a reasonable fee. Although the bill includes
"preparation with Attorney Dillon," the Court fmds that time was de minimis. lt is
reasonable to conclude that Mr. Leisenring spent two hours each way traveling
between Lancaster, Pennsylvania and Wilmington, Delaware for a total of four
hours. Additionally, Mr. Leisenring spent four hours testifying in Court.
Therefore, Plaintiffs shall recover $3‘,000 for Mr. Leisenring’s live trial testimony
plus $15.68 for "parl