Richard Artis v. Linda Neisser (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S OBJECTION TO DEFENDANT'S BILL OF COSTS (# 135)

The above-captioned matter was tried to a jury.   The jury rendered its verdict in favor of the defendant on April 10, 2013.   The defendant submitted its bill of costs which total $7,447.15.   The plaintiff objects to costs associated with the defendant's expert witness, Dr. Andrew Bazos' fee for testifying at trial as allowed under General Statutes § 52–260(f), and the cost allowed for a difficult case pursuant to § 52–257.¹  Dr. Bazos' fee is $6,380 and the defendant is asking for the maximum amount allowable under § 52–257 which is $200.

“[Section] 52–260(f) provides that the reasonable fee charged by [a practitioner of the healing arts] for his or her trial testimony shall be taxed as part of the costs in lieu of all other witness fees otherwise payable to the [practitioner] ․” M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 674 A.2d 845 (1996).   In construing section 52–260(f) to determine whether the fee for an appraisal report was covered under § 52–260(f), our Supreme Court noted:  “[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.   Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes ․ and that [s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law ․ Applying these precepts to the plaintiff's claims, we agree with the conclusion of the trial court that the fee for the appraisal report is not a taxable cost under ․ § 52–260(f).

“It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute ․ Furthermore, because [c]osts are the creature of statute ․ unless the statute clearly provides for them courts cannot tax them.   Accordingly, the plaintiff can prevail only if the statutory provisions upon which it relies clearly empower the trial court to tax the cost of a real estate appraisal report.

“The plaintiff fares no better under § 52–260(f).  By its express terms, § 52–260(f) treats as taxable only those costs that arise from an expert's testimony at trial.   Furthermore, the plaintiff points to nothing in the legislative history of § 52–260(f) to suggest that the legislature intended to convey a broader meaning than is imparted by the plain statutory language.   See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1011 (1995) (“[w]e will not impute to the legislature an intent that is not apparent from unambiguous statutory language in the absence of a compelling reason to do so”).   Although it is undoubtedly true that some or all of the work done by a real estate appraiser in preparing a report will provide the basis for the appraiser's testimony, that fact alone lends no support to the plaintiff's claim because, as we have previously stated, litigants in this state have long been held responsible for the payment of their own litigation expenses absent a clear expression of legislative intent to the contrary.”   (Citations omitted;  internal quotation marks omitted.)  M. DeMatteo Construction Co. v. New London, supra, 236 Conn. 714–16, 717–18.

In addition, the Supreme Court has also been clear that pursuant to § 52–260(f) a witness fee can only be awarded for the reasonable cost of a witness testifying, not for preparation time or for mileage and transportation costs.   In Smith v. Andrews, 289 Conn. 61, 87, 959 A.2d 597 (2008), the court found that “[i]t is clear that the language of § 52–260(f) neither authorizes a reasonable fee for an expert's trial preparation time as distinguished from his or her in-court trial testimony, nor expressly authorizes costs for an expert's travel, transportation and hotel costs.   Thus, as [the court] noted in M. DeMatteo Construction Co. v. New London, supra, 236 Conn. 717, ‘[b]y its express terms, § 52–260(f) treats as taxable only those costs that arise from an expert's testimony at trial.’   Accordingly, absent such an express legislative provision, [there is] no reason to abrogate this state's long-standing adherence ․ that litigants are responsible for the payment of their own litigation expenses.”  Smith v. Andrew, supra.

As part of defendant's costs it claims are associated with Dr. Bazos' expert fee, is an amount of $880 which is for trial preparation and review of articles on “cuff tears.”   Based on the foregoing legal principles, this court concludes that this amount is not a taxable cost under § 52–560(f).  Neither is Dr. Bazos entitled to “costs for [his] travel [or] transportation.”  Smith v. Andrews, supra, 289 Conn. 87.

Dr. Bazos' bill submitted with defendant's bill of costs, indicates a flat fee in the amount of $5,500 for his court appearance in “New London.”   This case was tried in the New Haven Judicial District.   The defendant in its reply to the plaintiff's objection, states that this was a typographical error.   In addition, the defendant, in its reply makes reference to Dr. Bazos' having to travel from New Milford to New Haven, which raises the question of whether Dr. Bazos' flat fee of $5,500 includes travel expenses and mileage.

Accordingly, the defendant shall resubmit a bill which reflects Dr. Bazos' fee for testifying in court, excluding costs for travel, mileage and transportation, and which contains the correct judicial district where the case was tried.   The court further finds that this case did present difficult issues regarding scientific and medical evidence and Porter issues.   In addition, while liability was admitted, damages and causation was hotly contested.   Thus, the court grants the defendant's costs in the amount of $200 in accordance with § 52–257.

Plaintiff's objection is SUSTAINED as to costs associated with Dr. Bazos' fee without prejudice to the defendant resubmitting Dr. Bazos' bill which reflects his fee for in-court testimony in the New Haven Judicial District, excluding costs for trial preparation time, travel, mileage and transportation.   Upon resubmission of Dr. Bazos' bill in accordance with the court's order, defendant's costs associated with Dr. Bazos' trial testimony shall be granted in accordance with § 52–260(f).

Wilson, J.

FOOTNOTES

FN1. General Statutes § 52–257(a) provides in relevant part:  “The fees of parties in civil actions in which the matter in demand is not less than fifteen thousand dollars shall be for ․ (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars.”General Statutes § 52–260(f) provides in relevant part:  “When any practitioner of the healing arts ․ gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts ․ and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts..  FN1. General Statutes § 52–257(a) provides in relevant part:  “The fees of parties in civil actions in which the matter in demand is not less than fifteen thousand dollars shall be for ․ (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars.”General Statutes § 52–260(f) provides in relevant part:  “When any practitioner of the healing arts ․ gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts ․ and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts.

Wilson, Robin L., J.