Delaware Trial Handbook § 28:8. COSTS AS PART OF A CIVIL JUDGMENT

As part of a final judgment in a civil case, a court may award to a party the costs of litigation. The term “costs” is not synonymous with “expenses” incurred by a party in successfully pursuing his claims. “Costs” are allowances in the nature of incidental damages awarded to reimburse the prevailing party for expenses necessarily incurred in the assertion of that party’s rights in court. Only those expenses necessarily incurred in the assertion of one’s rights in court are recoverable as costs.101 At common law, the awarding of costs was unknown. Thus, the right to recover costs depends on statutory authority and rule of court.102 Authority to tax costs in civil cases is granted by statute to the Court of Chancery103 and the courts of law,104 and is governed by rule in the Court of Chancery,105 the Superior Court,106 the Court of Common Pleas,107 the Family Court,108 and the Court of the Justices of the Peace.109

Except as to the Family Court, whose rules provide differently, costs are generally awarded to the prevailing party as a matter of course.110 Who is the “prevailing party” is determined by the award of judgment, and not whether the party awarded judgment actually receives payment of it.111 The prevailing party is generally recognized as the party in whose favor judgment is entered, whether or not that party succeeds on all claims or recovers all damages sought,112 although a court may reduce the award of costs when a party achieves only partial success.113  In certain circumstances, a pragmatic view of the result may determine who is the prevailing party. For example, in one case brought pursuant to Delaware’s Freedom of Information Act,114 although the complaint was dismissed as moot when the defendants decided not to take the action complained of, because the filing of the lawsuit caused the defendants to reconsider their actions, the plaintiff was deemed to be the prevailing party, notwithstanding that no judgment had been entered in favor of the plaintiff.115

Where justice requires, courts have discretion to deny a prevailing party an award of costs and may even tax costs against the prevailing party.116 For example, in some courts, if a defendant serves upon a plaintiff’ an offer of judgment which the plaintiff rejects and if the decision after trial is less favorable to the plaintiff than the offer of judgment, the plaintiff must pay all costs incurred after the making of the offer, even though the plaintiff was the prevailing party.117 Similarly, a party who demands a trial de novo in the Superior Court after completing mandatory arbitration and, even though prevailing, fails to obtain a verdict from the jury or judgment from the court more favorable than that party received from the award of the arbitrator will be assessed the fees and costs of the arbitration, including the arbitrator’s compensation.118 Further, the Delaware Constitution provides that “no costs shall be awarded against any party to a cause by reason of the fact that the suit is brought in a county other than that in which the defendant or defendants may reside at the time of bringing suit.”119 This provision does not bar the recovery of all costs, but only those costs incurred by reason of the filing of suit in a different county. Costs that would have been incurred in any event are not precluded by the Constitution.120 Notwithstanding this, a separate statute prohibiting taxing costs against a defendant when the action was brought in a county different from where the defendant resides has been interpreted as constituting an absolute bar to the recovery of any costs.121

By rule, if at any time during the progress of a civil action a party unnecessarily swells the record or otherwise causes unnecessary expense, a court, in its discretion, may tax such unnecessary costs against the party causing them, without regard to the outcome of the action.122

The decision to award costs is within the discretion of the trial court.123 There is no requirement that costs be awarded, and a court will consider the circumstances of each individual case in fashioning an award of costs,124 including the financial circumstances of the party against whom costs would be taxed.125

The proper method of determining costs is for the prevailing party to file a motion setting forth the necessary facts along with a form of order.126 By court rule, in the Superior Court, a motion for costs must be made within ten days after the entry of final judgment unless the court otherwise directs.127 The applicant must substantiate any expenditures it seeks to recover.128 Absent special circumstances, the trial court should rule on such motion within thirty days.129

If the prevailing party in the trial court has the judgment affirmed in the Supreme Court, that party may recover the costs of the appeal as well as the costs of the trial.130 If the judgment is reversed and remanded for a new trial, the prevailing party in the new trial may recover costs expended in both trials.131

There is a split of authority as to whether a prevailing party is entitled to interest on costs.132

When there are several parties, and judgment is entered against fewer than all of them, each liable party is only responsible for his or her pro rata share of the costs.133 Costs may also be apportioned according to the percentage of fault of various defendants.134

The following is a guide to some of the types of court costs which have been found to be or not to be taxable against the losing party:

Bill of Costs. Within twenty days after the rendering of a judgment or other determination, the Clerk of the Court, the Prothonotary or the Register in Chancery must enter upon the docket a full bill of court costs.135 This bill represents the fees charged by the courts for filing, recording and other services provided in processing the action.136 Those costs, normally paid at the outset by the plaintiff, are taxable against the losing party.137

In addition to the courts’ own fees, litigants are now subject to additional fees for using electronic filing services such as LexisNexis.  Those fees are recoverable as costs.138

Service of Process. The cost of service of process, including the costs incurred in compelling the attendance of witnesses, is taxable.139 This includes the fees of special process servers for service of trial or deposition subpoenas (where the deposition is entered into evidence).140 In one opinion the court declined to tax the costs of service of process upon the Secretary of State, as required under that such expenses were not “necessarily incurred” by the plaintiffs in asserting their rights or processing the case.141

Jury Lists. Although it is considered a matter of judicial discretion, generally the cost of obtaining from the Prothonotary a copy of the list of potential jurors is not taxable as it is not “necessarily incurred” in the processing of the case.142

Trial Transcripts. In the Court of Chancery, the cost of copies of the trial transcript provided to the court and/or the parties is not taxable.143 In the Superior Court, although a trial transcript is not a routine cost,144 the court, in its discretion, may allow the prevailing party to recover the cost of the court’s copy of a trial transcript, particularly where a non-jury trial was long and complicated and the transcript assisted the trial (or appellate) court in making its findings of fact or conclusions.145

Deposition Transcripts. In the Court of Chancery, the fees of the court reporter for transcribing a deposition are not taxable as costs.146 Neither are the costs of a translator in connection with depositions of non-English speaking witnsses.147 In other courts, such fees are taxable if the deposition is introduced into evidence at trial148 (not merely submitted to the court at the end of the trial149), provided that more than a de minimis amount of the deposition is so introduced.150 “Transcripts” include videotapes of a deposition.151 If a videotaped deposition is introduced at trial, the party introducing it, if successful, may recover the cost of recording and playing back at trial that portion of the deposition that was introduced at trial.152 If a party introduces a videotaped deposition at trial, that party may not recover the costs of a transcription in addition to the cost of videotaping.153 Nor may a party recover the costs of editing the video for trial.154

Photocopying. The cost of making copies of trial exhibits generally is not taxable, as the copies are usually made for the accommodation of the parties, and not for the court.155 Where such exhibits are prepared by one party yet requested for use by another party, the court, in its discretion, may tax the cost of preparing such exhibits to that other party.156

Pro Hac Vice Fees. Such fees are not recoverable on the theory that they could have been avoided by selecting a Delaware attorney to bring the litigation.157

Injunction Bond. The premium paid to obtain a bond that is a necessary prerequisite to obtaining a temporary restraining order or a preliminary injunction is taxable.158

Telephone, Mail, Telecopy Expenses. Telephone, telecopy and related charges incurred by the litigants and their attorneys are not taxable.159

Computer Research. Use of computer research databases, such as Westlaw® or Lexis® is not taxable.160

Translator. The cost of a translator for the hearing-impaired may be taxed against a party.161 The cost of a foreign-language interpreter is also taxable.162

Travel and Lodging of Parties and Non-Expert Witnesses. The cost of travel and lodging for parties and non-expert witnesses is not taxable.163

Special Jury. The cost of a special jury may be taxed against a party in the discretion of the court.164

Expert Witnesses. By statute, fees for witnesses testifying as experts or in their capacity as professionals in the Superior Court or the Court of Chancery are taxable as costs in the discretion of the trial court.165 Such fees are limited to the time necessarily spent in attendance upon the court for the purpose of testifying, including travel to and from the courthouse, waiting to testify and actually testifying. Nor does it include the time spent in listening to other witnesses for “orientation” or in counseling and advising a party or counsel or other witnesses,166 or delay caused by the offering party’s tactical decision when to present the expert.167 However, a court may, in its discretion, award fees for time spent waiting where there are unexpected delays outside the control of the party offering the expert.168 It also does not include the cost of services provided by the expert in advance of the time expended in conjunction with actually attending the trial for the purpose of testifying, such as the expert’s study of an investigation into the facts forming the basis for the opinion.169 It may include travel expenses, including meals and lodging, of the expert,170 and even the cost of parking at the courthouse.171 If the deposition testimony of an expert is introduced into evidence as well as trial testimony, the victorious party is entitled to recover the cost of such deposition testimony.172

The trier of fact need not have relied upon the expert’s testimony to permit taxation of the expert’s fees.173 Nonetheless, the grant or denial of expert witness fees is within the discretion of the trial court, and a judge may choose to deny an award of such fees if the judge believes that under the circumstances of the case such an award is not appropriate.174

Further, where a defendant brings an expert to trial but the expert does not testify because the defendant prevailed on a motion for a directed verdict at the close of the plaintiff’s case in chief, the defendant may recover the expert’s travel and waiting fees.175 Costs of an expert are not taxable, however, when the expert testifies as a “fact” witness.176

The amount of the fees to be taxed is within the discretion of the trial court.177

To encourage uniformity of medical witness fees, when a physician testifies as an expert for three hours or less, a minimum witness fee should be allowed based upon a flat amount for a one-half day interruption in the physician’s usual schedule.  In 1992, the Delaware Supreme Court stated that, pending an up-to-date study of the matter,178 a minimum of $600.00 is reasonable in cases where the physician testifies for three hours or less.179 At least one subsequent lower-court decision has deemed this figure to be already outdated.180 More recently, courts have relied on the advice of the Medico-Legal Affairs Committee of the Medical Society of Delaware. The Committee’s 2006 recommendations state that an appropriate fee range for a deposition lasting up to two hours is $1000-$2000. That figure has then been adjusted to reflect increases in the consumer price index for medical care.181

Where the physician testifies for more than three hours but less than a full day, the trial court should determine, in its discretion, a reasonable hourly rate to apply to that part of the testimony that exceeds three hours. In such cases, the burden is on the party requesting compensation for the expert’s testimony, reasonable waiting time and related transportation expenses. The expert’s travelling time, however, should not be calculated at the same hourly rate that the expert charges for testifying.182

These rules relating to fees for medical experts have been applied by analogy to other professionals, such as economists and computer scientists.183

101. Donovan v. Delaware Water & Air Resources Corn., 358 A.2d 717, 723 (Del. 1976); Peyton v. William C. Peyton Corp, 8 A.2d 89, 91-2 (Del. 1939); Gaffin v. Teledyne, Inc., C.A. No. 5766, slip op. at 3-4, Hartnett, V.C.(Del. Ch. July 13, 1993).

102. Donovan v. Delaware Water & Air Resources Comm., 358 A.2d 717, 723 (Del. 1976); Peyton v. William C. Peyton Corp., 8 A.2d 89, 91-2 (Del. 1939); Muhleman & Kayhoe, Inc. v. Brown, 50 A.2d 92, 93 (Del. Super. 1946).

103. 10 Del. C. § 5106 (“[t]he Court of Chancery shall make such orders concerning costs in every case as is agreeable to equity”).

104. 10 Del. C. § 5101 (“[ijn a court of law, whether of original jurisdiction or of error, upon a voluntary or involuntary discontinuance or dismissal of the action, there shall be judgment of costs for the defendant. Generally a party for whom final judgment in any civil action, or on a writ of error upon a judgment is given in such action, shall recover, against the adverse party, costs of suit, to be awarded by the court”).

105. Ch. Ct. R. 54(d) (“[e]xcept when express provision therefor is made either in a statute or these Rules, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs”).

106. Super. Ct. Civ. R. 54(d) (“[e]xcept when express provision therefor is made either in a statute or in these Rules Or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs”).

107. Comm. Pls. Ct. Civ. R. 54(d) (“[w]hen express provision thereof is made, either in a statute or in these Rules, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs”).

108. Fam. Ct. Civ. R. 3(c) (“[a]t the time of final disposition and order, fees and costs will be assessed against the petitioner unless the Judge or Master waives all or part of the fees and costs or assesses them wholly or in part against the respondent or in some other manner”).

109. J.P. Ct. Civ. R. 19(i) (“[e]xcept where express provision thereof is made either in a statute or in the Rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs”).

110. Ch. Ct. R. 54(d); Super. Ct. Civ. R. 54(d); Comm. Pls. Ct. Civ. R. 54(d); J.P. Ct. Civ. R. 19(i); Science Accessories Corp. v. Summagraphics Corp., 425 A.2d 957, 967 (Del. 1980); Walsh v. Hotel Corp. of America, 231 A.2d 458, 462 (Del. 1967); Gottlieb v. Heyden Chemical Corp., 105 A.2d 461, 462 (Del. 1954); Bodley v. Jones, 65 A.2d 484, 487-8 (Del. 1948); In re Equitable Trust Co., 30 A.2d 271, 272 (Del. Ch. 1943); Kennedy v. Emerald Coal & Coke Co., 30 A.2d 269 (Del. Ch, 1943).

111. Graham v. Keene Corp., 616 A.2d 827, 829 (Del. 1992).

112. Wayman Fire Protection, Inc. v. Premium Fire & Security, LLC, C.A. No. 7866-VCP, slip op. at 88, Parsons, V.C. (Del. Ch. Mar. 5, 2014) (noting that the prevailing party is the party who prevails on a majority of its claims); Nowak v. Nonantum Mills Maintenance Corp., C.A. No. 210-N, slip op. at 4, Lamb, V.C. (Del. Ch. May 18, 2005);  Brandin v. Gottlieb, C.A. No. 14819, slip op. at 69-70  & n.72, Strine, V.C. (Del. Ch. July 13, 2000).

113. Fasciana v. Electronic Data Systems, Corp., 829 A.2d 178, 185 (Del. Ch. 2003).

114. 29 Del. C. § 10001, et seq.

115. Layfield v. Hastings, C.A. No. 1673, slip op. at 4-6, Allen, C. (Del. Ch. July 10, 1995).

116. Ch. Ct. Civ. R. 54(d); Super. Ct. Civ. R. 54(d); Comm. Pls. Ct. Civ. R. 54(d); J.P. Ct. Civ. R. 19(i). Although it has been said that 10 Del. C. § 5101 does not grant the Superior Court the authority to tax the costs of an unsuccessful party against a prevailing party, Donovan v. Delaware Water & Air Resources Com., 358 A.2d 717 (Del. 1976), Superior Court Civil Rule 54(d) provides that the court may otherwise direct how, costs are to be assessed. See 10 Del. C. § 56 1(d) (where there is conflict between the statute and Superior Court Rules regarding practice or procedure in the Superior Court, the rules control). By contrast, 10 Del. C. § 5106 has been interpreted as granting authority to the Court of Chancery to tax costs against the prevailing party in the proper case. Science Accessories Corp. v. Summagraphics Corp., 425 A.2d 957, 967 (Del. 1980).

117. Super. Ct. Civ. R. 68; Common. Pls. Ct. Civ. R. 68; J.P. Ct. Civ. R. 22. See also Ellingsworth v. Hudson, C.A. No. 90C-08-0O5, slip op. at 5-6, Lee, J. (Del. Super. July 20, 1992), aff’d mem., 622 A,2d 1095 (Del. Mar. 8, 1993); Smith v. Sante Volpe, Inc., C.A. No. 82C-DE-5, Babiarz, J.  (Del. Super. Jan. 31, 1992); Parsons v. Black, C.A. No. 89C-JA-102, Toliver, J. (Del. Super. June 5, 1990).

118. Super. Ct. Civ. R. 16.1(h)(4).

119. Del. Const. art. IV, § 16.

120. Jardel Co. v. Hughes, 523 A.2d 518, 533 (Del. 1987).

121. 10 Del. C. § 5102; Hunter v. H & H Brand Farms, C.A. No. 93C0930292, slip op. at 1, Ridgely, J. (Del. Super. Dec. 14, 1995); Dick v. Koutoufaris, C.A. No. 88C-NO-1 14, Gebelein, J. (Del. Super. July 13, 1992); Zazanis v. Jarman, C.A. No. 87C-SE-63, slip op. at 2-4, Herlihy, J. (Del. Super. Mar. 20, 1990). See also Rayne v. Greenly, C.A. No. 79C-MY-37, Taylor, J. (Del. Super. Feb. 20, 1981). This prohibition applies equally to actions against corporate defendants, although the method of determining the county in which the corporation “resides” is uncertain. Zazanis v. Jarman, C.A. No. 87C-SE-63, slip op. at 5-7, Herlihy, J. (Del. Super. Mar. 20, 1990). See also Bounds v. Delmarva Power & Light Co., C.A. No. 01C-07-028 JTV, slip op. at 2-3, Vaughn, J. (Del. Super. Jan. 30, 2004) (where corporation has extensive presence throughout the state, corporation is deemed to reside in all three counties).

122. Ch. Ct. R. 54(e); Super. Ct. Civ. R. 54(e); Comm. Pls. Ct. Civ. R. 54(e); Fam. Ct. Civ. R. 3(d).

123. Jardel Co. v. Hughes, 523 A.2d 518, 523 (Del. 1987); Donovan v. Delaware Water & Air Resources Corn., 358 A.2d 717, 722-23 (Del. 1976); Nygaard v. Lucchesi, 654 A.2d 410, 415 (Del. Super. 1994).

124. Radka v. Irman, C.A. No. 97C-03-191 HLA, slip op. at 3, Alford, J. (Del. Super. Sept. 19, 2001); Newton v. Devin, C.A. No. 88C-OC-136, slip op. at 1, Gebelein, J. (Del. Super. May 21, 1992).

125. Legros v. Jewell, C.A. No. 98C-02-033, slip op. at 2-3, Vaughn, J. (Del. Super. Mar. 30, 2001).

126. Peyton v. William C. Peyton Corp., 8 A.2d 89, 93 (Del. 1939).

127. Super. Ct. Civ. R. 54(d). Prior to the adoption of the ten-day rule, the Superior Court addressed such matters on a case-by-case basis. See Roberts v. Bullard, C.A. No. 96C-02-089-VAB, Quillen, J. (Del. Super. Dec. 23, 1998) (motion for costs filed more than thirty days after judgment with no intervening action denied as untimely); Mango v. White, C.A. No. 96C-06-115-WTQ, Quillen, J. (Del. Super. Mar. 19, 1998) (untimely if made after appeal time has run); Hall v. Bodenstab, C.A. No. 92C-02-073-JEB, Babiarz, J. (Del. Super. Feb. 20, 1997); Beach v. Weldin, C.A., No. 82C-JN6, Graves, J. (Del Super. Mar. 4, 1991)(motion to tax costs denied where made five months after entry of judgment without explanation); Cox v. Brooks, C.A. No. 84C-JL-22, Bifferato, J. (Del. Super. Mar. 10, 1989) (motion to tax costs denied when made four months after verdict). There is no comparable rule in other courts, but presumably a motion for costs should be presented in a timely manner, and unreasonable failure to do so may be cause for denying the motion.

128. Russo v. Medlab Clinical Testing, Inc., C.A. No. 99C-12-019, slip op. at 9, Bradley, J. (Del. Super. Nov. 14, 2001).

129. Sliwinski v. Duncan, No. 260, 1991 slip. op. at 1 n.l, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE).

130. 10 Del. C. § 5107.

131. See Re v. Gannett Co., Inc., C.A. No. 81C-SE-65, slip op. at 2 n.1, Poppiti, J. (Del. Super. Dec. 22, 1989).

132. Compare Re v. Gannett Co., C.A. No. 81C-SE-65, slip op. at 9, Poppiti, J. (Del. Super. Dec. 22, 1989) (after remand, interest on costs of first trial not taxable), with Hughes v. Jardel Co. Inc., C.A. No. 82C-JL-38, slip op at 4 n.2, Martin, J. (Del. Super. June 8, 1987) (noting that modern trend permits interest on costs).

133. Clum v. Daisy Concrete,Inc., 578 A.2d 684, 686 (Del. Super. 1989).

134. Newton v. Devin, C.A. No. 88C-OC-136, slip op. at 3, Gebelein, J. (Del. Super. May 21, 1992); Orlowsky/Green v. Union Wholesale, C.A. Nos. 89C-DE-229 & 90C-JA-165, slip op. at 1-2, Del Pesco, J. (Del. Super. Jan. 14, 1992).

135. 10 Del. C. § 5112.

136. See Ch. Ct. R. 3(bb); Super. Ct. Civ. R. 77(h); Comm. Pls. Ct. Civ. R. 109; Fam. Ct. Civ. R. 3(c); J.P. Civ. R. 4A.

137. Claus v. Babiarz, 190 A.2d 19, 20 (Del. Ch. 1963). See also Cannon v. Lieberman, C.A. No. 637, slip op. at 3, Hartnett, V.C. (Del. Ch. Jan. 30, 1980); Maconi v. Price Motocars, C.A. No. 91C-08-l78, slip op. at 5, Del Pesco, J. (Del. Super. Dec. 1, 1993), reh’g denied, C.A. No. 91C-08-178, Del Pesco, J. (Del. Super. Jan. 3, 1994); Concors Supply Co. v. Giesecke Int’l Ltd., C.A. No. 83C-MR-122, slip op. at 3 n.3, Toliver, J. (Del. Super. July 24, 1992).

138. Bordley v. GMRI, Inc., C.A. No. 04C-08-039 (MJB), slip op. at 8-9, Brady, J. (Del. Super. Oct. 19, 2006); Dewey Beach Lions Club v. Longacre, C.A. No. 162-S, slip op. at 2-3, Lamb, V.C. (Del. Ch. Oct. 11, 2006).

139. Midcap v. Sears, Roebuck and Co., C.A. No. 01C-03-042WLW, slip op. at 15, Witham, J. (Del. Super. May 26, 2004); Gaffin v. Teledyne, Inc., C.A. No. 5766, slip op. at 6, Hartnett, V.C. (Del. Ch. July 13, 1993); Turner v. Lipschultz, C.A. No. 90C-10-94, slip op. at 2, Del Pesco, J. (Del. Super, June 23, 1992), rev’d on other grounds, remanded, 619 A.2d 912 (Del. 1992); Bowles v. White Oak, Inc., CA. No. 86C-AP-107, slip op. at 3, Babiarz, J. (Del. Super. Jan. 31, 1992).

140. Cubberly v. Orr, C.A. Nos. 94C-03-171-CV & 94C-03-185-1-CV, slip op. at 3, Del Pesco, J. (Del. Super. Oct. 24, 1995).  But see Cox v. Bey, C.A. No. 90C-04-30, slip op. at 1, Bifferato, J. (Del. Super. Oct. 28, 1993).

141. Nygaard v. Lucchesi, 654 A.2d 410, 415 (Del. Super. 1994); Maconi v. Price Motocars, C.A. No. 91C-08-178, slip op. at 4, Del Pesco, J. (Del. Super. Dec. 1, 1993), reh’g denied, C.A. No. 91C-08-178, Del Pesco, J. (Del. Super. Jan. 3, 1994).

142. Nygaard v. Lucchesi, 654 A.2d 410, 415 (Del. Super. 1994); Midcap v. Sears Roebuck & Co., C.A. No. 01C-03-042WLW, slip op. at 15, Witham, J. (Del. Super. May 26, 2004); Maconi v. Price Motocars, C.A. No. 91C-08-178, slip op. at 5, Del Pesco, J. (Del. Super. Dec. 1, 1993), reh’g denied, C.A. No. 91C-08-178, Del Pesco, J. (Del. Super. Jan. 3, 1994).

143. Ch. Ct. R. 54(d); Weinberger v. UOP, Inc., 517 A.2d 653, 657 (Del. Ch. 1986); Hutehinson v. Fish Engineering Corp., 116, 204 A.2d 752, 753 (Del. Ch. 1964), aff’d, 213 A.2d 447 (Del. 1965); Gaffin v. Teledyne, Inc., C.A. No. 5766, slip op. at 5, Hartnett, V.C. (Del. Ch. July 13, 1993).

144. Cox v. Bey, C.A. No. 90C-04-30, slip op. at 1, Bifferato, J. (Del. Super. Oct. 28, 1993).

145. Ripsom v. Beaver Blacktop, Inc., C.A. No. 83C-AU-128, slip op. at 5-6, Poppiti, J. (Del. Super. Dec. 4, 1989); Concord Plaza Associates v. Honeywell, Inc., C.A. No. 84C-JL-128, slip op. at 1, Martin, J. (Del. Super. Mar. 23, 1988), aff’d mem., 550 A.2d 34 (Del. 1988). But see Connolly v. Labowitz, C.A. No. 83C-AU-l, slip op at 4-5, Poppiti, J. (Del. Super. Dec. 15, 1987) (daily trial transcripts not taxable as they were only for the convenience of counsel and the parties).

146. Ch. Ct. R. 54(d); Hutchinson v. Fish Engineering Corp., 204 A.2d 752, 753 (Del. Ch. 1964), aff’d, 213 A.2d 447 (Del. 1965).

147. Tanyous v. Happy Child World, Inc., C.A. No. 2947-VCN, slip op. at 3-4, Noble, V.C. (Del. Ch. Dec. 19, 2008).

148. Super. Ct. Civ. R. 54(g); Comm. Pls. Ct. Civ. R. 54(g): Re v. Gannett Co., Inc., C.A. No. 81C-SE-65, slip op. at 3, Poppiti, J. (Del. Super. Dec. 22, 1989). See also DIGA v. Troise, C.A. No. 88C-07-007, slip op. at 2, Steele, J. (Del. Super. Sept. 14, 1992) (Rule 54 does not permit reimbursement for deposition introduced for purpose of pre-trial motion).

149. Bailey v. Beebe Medical Center, Inc., C.A. No. 03C-04-013, slip op. at 15, Bradley, J. (Del. Super. Aug. 31, 2005), aff’d mem., 913 A.2d 543 (Del. 2006).

150. Industrial America, Inc. v. P & F Indus., Inc., C.A. No. 84C-MY-24, slip op. at 1, Taylor, J. (Del. Super. Apr. 1, 1986) (ORDER) (reading into record one line of deposition transcript insufficient to permit recovery of cost of deposition).

151. Nygaard v. Lucchesi, 654 A.2d 410, 415 (Del. Super. 1994); Wailer v. Campanelli, C.A. No.  00C-09-146CLS, slip op. at 7-8, Scott, J. (Del. Super. Feb. 11, 2004), aff’d mem., 860 A.2d 812 (Del. 2004); Turner v. Lipschultz, C.A. No. 90C-10-94, slip op. at 2, Del Pesco, J. (Del. Super. June 23, 1992), rev’d on other grounds, remanded, 619 A.2d 912 (Del. 1992); Richardson v. St. Francis Hospital, C.A. No. 89C-DE-22, slip op. at 2, Bifferato, J. (Del. Super. Jan. 23, 1992); Connolly v. Labowitz, C.A. No. 83C-AU-1, slip op. at 3, Poppiti, J. (Del. Super. Dec. 15, 1987).

152. Super. Ct. Civ. R. 54(f); Comm. Pls. Ct. Civ. R. 54(f). The adoption of this rule and the use of the word “playback” appears to reverse prior case law which held that the cost of playing a videotaped deposition at trial was not taxable as a court cost. See Sliwinski v. Duncan, No. 260, 1991 slip. op. at 9-10, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE); Little v. Morgan, CA. No. 86C-AP-l, slip op. at 3, Toliver, J. (Del. Super. Apr. 10, 1991); Mills v. Felt, C.A. No. 245, slip op. at 3, Walsh, J. (Del. Super. Dec. 16, 1975).

153. Cubberly v. Orr, C.A. Nos. 94C-03-171-CV & 94C-03-185-1-CV, slip op. at 3, Del Pesco, J. (Del. Super. Oct. 24, 1995); Taylor v. Bowman, C.A. No. 88C-AU26, slip op. at 1, Graves, J. (Del. Super. Dec. 16, 1991), app. dismissed, 610 A.2d 726 (Del. 1992).

154. Gress v. Viola, C.A. No. 04C-06-013 JTV, slip op. at 4, Vaughn, J. (Del. Super. May 31, 2007).

155. Hutchinson v. Fish Engineering Corp., 204 A.2d 752, 753 (Del. Ch. 1964), aff’d, 213 A.2d 447 (Del. 1965); Muhleman & Kayhoe, Inc. v. Brown, 50 A.2d 92, 94 (Del. Super. 1946); Maconi v. Price Motocars, C.A. No. 91C-08-l78, slip op. at 4, Del Pesco, J.  (Del. Super. Dec. 1, 1993), reh’g denied, C.A. No. 91C-08-178, Del Pesco, J. (Del. Super. Jan. 3, 1994); Ripsom v. Beaver Blacktop, Inc., C.A. No. 83C-AU-l28, slip op. at 3, Poppiti, J. (Del. Super. Dec. 4, 1989); Ota v. Health Chem Corp., C.A. No. 83C-FE-99, slip op. at 2, Taylor, J. (Del. Super. May 18, 1987).

156. Bowles v. White Oak, Inc., C.A. No. 86C-AP-107, slip op. at 3, Babiarz, J. (Del. Super. Jan. 31, 1992).

157. Immedient Corp. v. Healthtrio , Inc., C.A. No. 01C-08-216 RRC, slip op. at 2, Cooch, J. (Del. Super. July 6, 2007); Bailey v. Beebe Medical Center, Inc., C.A. No. 03C-04-013, slip op. at 15, Bradley, J. (Del. Super. Aug. 31, 2005), aff’d mem.,913 A.2d 543 (Del. 2006).

158. Claus v. Babiarz, 190 A.2d 19, 20 (Del. Ch. 1963).

159. Hutchinson v. Fish Engineering Corp., 204 A.2d 752, 753 (Del. Ch. 1964), aff’d, 213 A.2d 447 (Del. 1965); Muhleman & Kayhoe, Inc. v. Brown, 50 A.2d 92, 94 (Del. Super. 1946); Gaffin v. Teledyne, Inc., C.A. No. 5766, slip op. at 5, Hartnett, V.C. (Del. Ch. July [3, 1993); Chapman v. Bank of Delaware, C.A. No. 90C-JN-1 10, slip op. at 4, Toliver, J. (Del. Super. Aug. 11, 1992); Ota v. Health Chem Corp., C.A No. 83C-FE-99, slip op. at 2, Taylor, J. (Del. Super. May 18, 1987); Richardson v. St. Francis Hospital, C.A. No. 89C-DE-22, slip op. at 3, Bifferato, J. (Del. Super. Jan. 23, 1992).

160. Gaffin v. Teledyne, Inc., C.A. No. 5766, slip op. at 5, Hartnett, V.C. (Del. Ch. July 13, 1993); Concors Supply Co. v. Giesecke Int’l Ltd., C.A. No. 83C-MR-122, slip op. at 4, Toliver, J. (Del. Super. July 24, 1992); Ripsom v. Beaver Blacktop, Inc., CA. No. 83C-AU-128, slip op. at 4, Poppiti, J. (Del. Super. Dec. 4, 1989).

161. 10 Del. C. § 8907.

162. Super. Ct. Civ. R. 43(e); Comm. Pls. Ct. Civ. R. 43(e); Fam. Ct. Civ. R. 43. But see Tanyous v. Happy Child World, Inc., C.A. No. 2947-VCN, slip op. at 5, Noble, V.C. (Del. Ch. Dec. 19, 2008) (in the absence of a court rule, the Court of Chancery declines to award fees for a translator at trial).

163. Ota v. Health Chem Corp., C.A. No. 83C-FE-99, slip op. at 2, Taylor, J. (Del. Super. May 18, 1987).

164. 10 Del. C. § 4506.

165. 10 Del. C. § 8906.  Being discretionary, a court may decide, in the proper case, to deny a request to award expert witness fees.  See, e.g., Moore v. Garcia, C.A. No. 93C-08-26, Quillen, J. (Del. Super. July 10, 1995).

166. Stevenson v. Henning, 268 A.2d 872, 874-75 (Del. 1970); State ex rel. State Highway Dept. v. Concord Heights, 238 A.2d 837, 838-39 (Del. 1968); Sliwinski v. Duncan, No. 260, 1991, slip op. at 5-6, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE); Connolly v. Labowitz, C.A. No. 83C-AU-1, slip op at 2, Poppiti, J. (Del. Super. Dec. 15, 1987); Re v. Gannett Co., Inc., C.A. No. 81C-SE-65, slip op. at 2, Poppiti, J. (Del. Super. Dec. 22, 1989); Little v. Morgan, C.A. No. 86C-AP-1, slip op. at 1, Toliver, J. (Del. Super. Apr. 10, 1991); Cumens v. Stout, C.A. No. 87C-JL-212, slip op. at 3-4, Poppiti, J.  (Del. Super. Mar. 6, 1990). Where the expert testimony is by videotape, compensable time includes time in attendance at the place where the taping occurs. See Pratt v. Fowler, C.A. No. 90C-JN-30, slip op. at 3-4, Steele, J. (Del. Super. Jan. 7, 1992).

167. Payne v. Home Depot, C.A. No. 03C-05-130-PLA, slip op. at 19, Ableman, J. (Del. Super. Mar. 12, 2009).

168. M&G Polymers USA, LLC v. Carestream Health, Inc., C.A. No. 07C-11-242 PLA, slip op. at 4-5, Ableman, J. (Del. Super. May 21, 2010).

169. Sliwinski v. Duncan, No. 260, 1991 slip. op. at 8-9, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE); Connolly v. Labowitz, C.A. No. 83C-AU-1, slip op. at 2-3, Poppiti, J. (Del. Super. Dec. 15, 1987).

170. Nygaard v. Lucchesi, 654 A.2d 410, 414 (Del. Super. 1994).

171. Christiana Marine Service Corp. v. Texaco Fuel and Marine Marketing Inc., C.A. No. 98C-02-217WCC, slip op. at 21, Carpenter, J. (Del. Super. Jan. 8, 2004).

172. Nygaard v. Lucchesi, 654 A.2d 410, 414 (Del. Super. 1994).

173. Consolidated Fisheries Co. v. Consolidated Solubles Co., 112 A.2d 30 (Del. 1955), supplemental op., 113 A.2d 576 (Del. 1955); Weinberger v. UOP, Inc., 517 A.2d 653, 656 (Del. Ch. 1986); Claus v. Babiarz, 190 A.2d 19, 20 (Del. Ch. 1963); Re v. Gannett Co., Inc., CA. No. 81C-SE-65, slip op. at 3, Poppiti, J. (Del. Super. Dec. 22, 1989).

174. See Q-Tone Broadcasting Co. v MusicRadio of Maryland, Inc., C.A. No. 93C-09-21-WTQ, slip op. at 4, Quillen, J. (Del. Super. Apr. 22, 1996) (declining to award certain expert witness fees in a jury trial under the circumstances); Barrows v. Bowen, C.A. No. 1454-S, slip op. at 6, Allen, C. (Del. Ch. Sept. 7, 1994) (declining to award expert witness fees in a non-jury trial, finding that the expert testimony was not helpful to the resolution of the case).

175. Chop v. Hayes, C.A. No. 78C-OC-10, slip op. at 2, Tease, J. (Del. Super. Aug. 19, 1980).

176. Re v. Gannett Co., Inc., C.A. No. 81C-SE-65, slip op. at 4-5, Poppiti, J. (Del. Super. Dec. 22, 1989); Connolly v. Labowitz, C.A. No. 83C-AU-1, slip op at 3, Poppiti, J. (Del. Super. Dec. 15, 1987).

177. Sliwinski v. Duncan, No. 260, 1991 slip. op. at 5, Christie, 1. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE).

178. In 1984, a committee concluded that reasonable compensation for physicians testifying as experts was $800.00 to $1,500.00 per day. Sliwinski v. Duncan, No. 260, 1991 slip. op. at 8-9, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE); Baker v. LaTonn, C.A. No. 80C-JN-17, slip op. at 1, Taylor, J. (Del. Super. Feb. 2, 1984) (ORDER).

179. Sliwinski v. Duncan, No. 260, 1991 slip. op. at 9, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE).

180. Cox v. Bey, C.A. No. 90C.04-30, slip op. at 2, Bifferato, J. (Del. Super. Oct. 28, 1993). But see Bejger v. Shreve, C.A. No. 95C-06-104 RRC, slip op. at 9 n.21, Cooch, J. (Del. Super. Apr. 12, 1997) (noting that the Supreme Court’s $600 figure “remains feasible today”).  Subsequent to both of those cases, in Clough v. Wal-Mart Stores, Inc., C.A. No. 94C-05-030 HDR, Ridgely, J. (Del. Super. Sept. 9, 1997), the Court noted that a 1995 study conducted by the Medical Society of Delaware’s Medico-Legal Affairs Committee advised a “reasonable range” of fees of from $1,300-$1,800 for a one-half day court appearance, and a range of $500-900 for a two-hour deposition, with a $150-200 charge for each additional half hour.  The Court took this into account along with the growth in the medical care price index, in awarding expert witness fees.

181. Enrique v. State Farm Mut. Auto. Ins. Co., C.A. No. 08C-07-026, slip op. at 4 & n.13, Vaughn, J. (Del. Super. June 30, 2010); Villari v. Mulshenock, C.A. No. 07C-03-017 FSS, slip op. at 6 & n.14, Silverman, J. (Del. Super. Sept. 24, 2009), aff’d mem., 996 A.2d 794 (Del. 2010).

182. Sliwinski v. Duncan, No. 260, 1991 slip. op. at 9, Christie, J. (Del. Jan. 15, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE); Carlucci v. Kish, C.A. No. 93C-02-027, slip op. at 7, Cooch, J. (Del. Super. Oct. 14, 1994).

183. Immedient Corp. v. Healthtrio, Inc., C.A. No. 01C-08-216 RRC, slip op. at 4, Cooch, J. (Del. Super. July 6, 2007); Midcap v. Sears Roebuck & Co., C.A. No. 01C-03-042WLW, slip op, at 9-10, Witham, J. (Del. Super. May 26, 2004).

© 2014  David L. Finger