Lafleur v. St. Francis Hospital, No. Cv 96-0565398 (Jan. 24 2001) , 2001 Conn. Super. Ct. 1654 ( 2001 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM ON OBJECTION TO DEFENDANT'S BILL OF COSTS CT Page 1655 On June 3, 1999 a jury verdict entered in this medical malpractice action in favor of the defendants, St. Francis Hospital, Fayyaz Hashmi, M.D. and Michael Therrian, M.D. On September 27, 1999, the defendant, Fayyaz Hashmi, M.D., filed a Bill of Costs seeking costs in the total amount of $3,734.00, which amount included $1,500 for "Expert Review" and $1,500 for "Trial Preparation" both by Dr. Henry Low. The plaintiff filed an Objection to Defendant's Bill of Costs on October 1, 1999 in which she asked the court to deny the taxing of $3,000 in costs attributed to Dr. Low because Dr. Low did not testify at trial and is not entitled to be compensated for preparation time.

Connecticut General Statutes § 52-260(f) provides in pertinent part as follows:

When any practitioner of the healing arts as defined in section 20-1 . . . is summoned to give expert testimony in any action or proceeding, the court shall determine a reasonable fee to be paid to the practitioner . . . and taxed as part of the costs in lieu of all other witness fees payable to the practitioner. . . .

There are no decisions from the Supreme or Appellate Courts as to whether a medical expert witness' preparation time is recoverable under § 52-260(f). There is a split among the trial courts as to whether an expert medical witness is permitted to recover preparation time under § 52-560 (f). Some decisions have authorized payment of costs for preparation time engaged in by expert medical witnesses. See, e.g.,Leveille v. Fishman, No. CV-94-0540229-S (Nov. 19, 1998)1998 Conn. Super. Ct. 13902;Rivera v. St. Francis Hospital, 20 Conn. L. Rptr. 180, 1997 WL 435868 (Conn. Super 1997); Harding v. Jacoby, 9 Conn. L. Rptr. 431, 1993 WL 286658 (Conn. Super 1993); Poirer v. Marlowe, 1996 WL 456314 (Conn.Super. 1996); Bray v. Anderson, 15 Conn. L. Rptr. 383, 1995 WL 669533 (Conn.Super. 1995). Others have held that an award of costs for preparation time is not authorized by Section 52-260 (f). See, e.g.,Crocco v. Lieb, 16 Conn. L. Rptr. 52, 1996 WL 66271 (Conn.Super. 1996);Garrell v. WWII Veteran's Memorial Hospital, 1996 WL 365215 (Conn.Super. 1996); Ahern v. Moskovitz, 2 Conn. L. Rptr. 471 (September 29, 1990); Kirk v. Vagnini, 11 C.L.T. No. 26 (December 28, 1984).

In Harding v. Jacoby, supra, Judge O'Neill held that a fee for a physician's preparation was recoverable under § 52-260(f) because trials are "90% preparation and 10% presentation." He also observed that the expert who would testify in court with no preparation might be CT Page 1656 characterized as "not worth his salt." This court agrees with Judge O'Neill's rationale in Harding. The reasonable fee of an expert allowed under § 52-260(f) must necessarily include a fee for preparation time because it is reasonable to expect that any expert "worth his salt" would require, and, presumably, charge for preparation time in connection with his trial testimony or his deposition testimony.

I do not doubt that Dr. Low spent time preparing for his trial testimony in this case, but he had an emergency which prevented him from testifying at trial, and Dr. Hashmi's counsel introduced Dr. Low's deposition testimony in lieu of his live testimony. Since Dr. Low did not testify at the trial, counsel for the plaintiff was unable to question Dr. Low about his preparation time and the court has no ability to assess whether the time now charged for preparation was reasonable. Therefore, Dr. Hashmi cannot recover the $1,500 for trial preparation time.

Several trial courts have considered depositions to be "proceedings" for purposes of § 52-260(f). Poirier v. Marlowe, 1996 WL 456314 (July 30, 1996, Corradino, J.); DeRosa v. Shoprite 1993 WL 498766 (November 15, 1993, Berger, J.). Dr. Hashmi can recover $1,500 for the time he spent preparing for and attending his deposition.

Based on the foregoing the court awards the defendant, Fayyaz Hashmi, M.D., the amount of $2,234 in costs.

By the court

Aurigemma, J.