Halaszi v. Wal-Mart Stores East LP

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LASZLO HALASZI, )
)
Plaintiff, )
)
v. ) C.A. No. K19C-07-020 NEP
)
WAL-MART STORES EAST LP, )
)
Defendant. )
ORDER
Submitted: February 24, 2023
Decided: April 13, 2023
Upon Plaintiff’s Motion for Costs and Interest
GRANTED IN PART and DENIED IN PART
INTRODUCTION
1. On January 26, 2023, Plaintiff Laszlo Halaszi (hereinafter “Plaintiff”)
obtained a jury verdict in his favor against Defendant Wal-Mart Stores East LP
(hereinafter “Defendant”) in the amount of $244,842.87.1 Plaintiff filed a motion
for costs and interest on January 31, 2023.2 Defendant filed a response on February
8, 2023,3 and Plaintiff filed a reply on February 10, 2023.4
1
Trial Worksheet (D.I. 54) at 1.
2
Pl.’s Mot. for Costs and Interest (D.I. 56) [hereinafter “Pl.’s Mot.”].
3
Def.’s Resp. to Pl.’s Mot. for Costs and Interest (D.I. 57) [hereinafter “Def.’s Resp.”].
4
Pl.’s Reply in Support of Pl.’s Mot. for Costs and Interest (D.I. 58) [hereinafter “Pl.’s Reply”].
On February 16, 2023, the Court sent a letter explaining that it would allow Defendant to submit
a sur-reply if it so chose. D.I. 59. Defendant responded with a letter to the Court on February 24,
2023, indicating that it would not be submitting a sur-reply. D.I. 60.
1
2. Plaintiff seeks to recover costs and prejudgment interest pursuant to
Superior Court Civil Rule 54(d) and 6 Del. C. § 2301(d). Specifically, Plaintiff
requests $86,619.03 in prejudgment interest5 and the following costs:
(a) $778.25 in electronic service and filing fees;
(b) $150.00 for the trial fee to the Prothonotary;
(c) $4,500.00 for the expert witness fee for the video trial deposition of
Steven M. Dellose, M.D.;6
(d) $1,373.85 for video processing and interactive deposition fees; and
(e) $2,125.00 for creating and editing of custom visual aids.7
3. Defendant opposes the motion only in part, arguing that (1) Dr.
Dellose’s video deposition fee is excessive for a one hour and twenty-eight minute
deposition, and should be no more than $2,500; (2) the costs for creating an
“interactive deposition” are excessive; and (3) the prejudgment interest award should
be reduced in light of trial delays caused by the COVID-19 pandemic and the
ensuing declaration of judicial emergency, which prevented jury trials from going
forward for a period of 13 months.8
DISCUSSION
I. Costs
4. The prevailing party in a civil action is generally entitled to an award
of costs,9 subject to the discretion of the trial court.10 These costs may include expert
5
Pl.’s Mot. at 4.
6
Plaintiff originally sought a $5,250 expert witness fee but reduced that figure to $4,500 in his
reply, conceding that the higher figure was not adequately documented by an invoice from Dr.
Dellose’s office. See Pl.’s Reply ¶ 1. As noted supra, Defendant declined to submit a sur-reply,
and Defendant did not otherwise dispute the adequacy of the documentation submitted in support
of the $4,500 expert witness fee.
7
Pl.’s Mot. at 2.
8
Def.’s Resp. at 3–6.
9
10 Del. C. § 5101; Super. Ct. Civ. R. 54(d).
10
See Bishop v. Progressive Direct Ins. Co., 2019 WL 2009331, at *1 (Del. Super. May 3, 2019)
2
witness fees and production costs for video depositions of those experts, so long as
the video deposition is introduced into evidence at trial.11
a. Expert Fee for Video Deposition
5. In light of Defendant’s Response and Plaintiff’s reply, it appears that
Dr. Dellose billed Plaintiff $4,500 for an 88-minute video deposition that was
subsequently played at trial.12 Defendant argues that this fee is excessive and that a
reasonable fee would be no more than $2,500.13
6. 10 Del. C. § 8906 provides that “[t]he fees for witnesses testifying as
experts or in the capacity of professionals in cases in the Superior Court . . . shall be
fixed by the Court in its discretion . . . .” While there is no “fixed formula” to
determine reasonable fees, the Court often looks to the published guidance of the
Medico-Legal Affairs Committee of the Medical Society of Delaware (hereinafter
the “Committee”).14 The most recent guidelines from the Committee, approved in
2016, recommend a fee range of $2,400 to $4,000 per half day of “Deposition &
(“Generally speaking, the decision to award costs is left to the discretion of the trial court.”);
Enrique v. State Farm Mut. Auto. Ins. Co., 2010 WL 2636845, at *1 (Del. Super. June 30, 2010)
(same), aff’d, 16 A.3d 938 (Del. 2011) (TABLE).
11
Super. Ct. Civ. R. 54(g)–(h); 10 Del. C. § 8906.
12
Plaintiff’s motion describes the deposition as having lasted “approximately 123 minutes.” Pl.’s
Mot. at 2. Defendant’s response, however, states that it lasted one hour and twenty-eight minutes
(i.e., 88 minutes) and includes transcript excerpts showing that the deposition began at 5:17 p.m.
and concluded at 6:45 p.m. Def.’s Resp. at 3 and Ex. A. In his reply, Plaintiff did not dispute that
the deposition lasted only 88 minutes.
13
Def.’s Resp. at 3.
14
Bishop, 2019 WL 2009331, at *2–3; see also, e.g., Ambrosio v. Drummond, 2017 WL 2544603,
at *2 (Del. Super. June 12, 2017); Henry v. State Farm Mut. Auto. Ins. Co., 2017 WL 4271205, at
*5 (Del. Super. Sept. 25, 2017); Enrique, 2010 WL 2636845, at *1.
3
Court Appearance.”15 Adjusted for inflation, this range becomes approximately
$3,000 to $5,000.16
7. Dr. Dellose charged a $4,500 hourly fee for his video deposition
appearance.17 The Court finds this rate excessive for an after-hours video deposition
lasting considerably less than a half a day.18 The deposition was conducted outside
of business hours in the comfort of Dr. Dellose’s office. Unlike an expert testifying
live at trial, he did not spend any time waiting to testify or experience a half-day
interruption in his office schedule.19 Taking into account Dr. Dellose’s
qualifications and extensive experience with knee replacement surgeries, but also
that the deposition lasted just under an hour and a half, the Court concludes that an
adjusted fee of $2,750 is reasonable in this case.20
15
Guidelines for Medical Expert Fees, Medical Society of Delaware, Medico-Legal Affairs
Committee (Sept. 8, 2016),
https://www.medicalsocietyofdelaware.org/DELAWARE/assets/files/Manuals/Resources/Expert
%20Fees%20final%202016.pdf; see also Permint v. Kia Motors Am., Inc., 2022 WL 2443009, at
*3 (Del. Super. June 23, 2022) (“In 2016, the Medico guidelines provided a half-day court
appearance ranged from $2400 to $4000.”). In addition to case law, the Court independently takes
judicial notice of the updated guidelines directly from the Medical Society of Delaware’s official
website, a source “whose accuracy cannot reasonably be questioned.” D.R.E. 201(b)(2).
16
Following the approach used in Bishop v. Progressive Direct Ins. Company, the Court used the
United States Department of Labor, Bureau of Labor Statistics Consumer Price Index calculator,
see 2019 WL 2009331, at *3 n.18, available online at
https://www.bls.gov/data/inflation_calculator.htm (last accessed April 10, 2023). The Court
entered $2,400 and $4,000 and compared September 2016 (the date the Committee guidelines were
approved) to January 2023 (the date of the deposition and trial), resulting in figures of $2,974.00
and $4,956.67, respectively.
17
Pl.’s Reply Ex. 1.
18
See Ambrosio, 2017 WL 2544603, at *2 (finding a $3,000 fee excessive for 43 minutes of expert
testimony and travel time).
19
See Permint, 2022 WL 2443009, at *3 (noting the time spent waiting to testify in support of the
reasonableness of experts’ fees); Ambrosio, 2017 WL 2544603, at *1 (“In Delaware, ‘[w]hen a
physician testifie[s] as an expert, for three hours or less, a minimum witness fee should be allowed
... based upon a flat amount for one-half day interruption in the physician schedule.’” (alterations
in original) (quoting Kaczmarczyk v. Liberty Mutual Fire Insu. Co., 2014 WL 1316192, at *1 (Del.
Super. Feb. 12, 2014))
20
Cf. Bishop, 2019 WL 2009331, at *3 (“With those guidelines in mind and also considering that
Dr. Pilkington’s testimony lasted 1 hour and 48 minutes and dealt with complex medical issues,
4
b. Interactive Video Deposition
8. As noted supra, Plaintiff seeks $1,373.85 for video processing and
interactive deposition fees as well as $2,125.00 for the creation and editing of custom
visual aids. These custom visual aids were shown to Dr. Dellose during his
deposition and incorporated into the video of that deposition, which was published
to the jury at trial. While there is no dispute that Plaintiff is entitled to production
costs for a video deposition that was played at trial, Defendant argues that Plaintiff
“is seeking costs that go far beyond the simple act of video production.”21
9. In support of these costs, Plaintiff relies on an unpublished letter
decision of this Court in Altschuler v. Kramer, in which the Court awarded costs for
similar use of technology and custom visual aids in an expert’s video deposition.22
The Court in Altschuler reasoned that:
The Court recognizes that 21st century technology, such as computer
graphics and digitized documents, are very effective tools in jury trials.
Not only do they enable jurors to better understand the evidence, but
they aid in the efficient and orderly presentation of that evidence. Here,
the technology utilized in the expert video depositions played at trial,
and the custom visual aids created for the jury, greatly assisted the jury
in understanding the medical evidence pertaining to causation and
damages.23
The Court finds the reasoning in Altschuler persuasive and agrees that the interactive
deposition and the custom visual aids were helpful, both to the jury and to the Court,
the Court finds his fee is reasonable and, thus, will award $ 2,500.00.”); Permint, 2022 WL
2443009, at *3 (“Dr. Perlman’s fee of $3,000 is reasonable considering her qualifications and
experience in her nearly two-hour deposition.”).
21
Def.’s Resp. at 4. Defendant frames this as an argument against awarding the full $1,373.85
cost for video production and does not expressly object to the costs associated with the custom
visual aids, but the Court addresses both since the custom visual aids were integrated with the
interactive video deposition.
22
Altschuler v. Cramer, C.A. No. N12C-06-202 JRJ (Del. Super. Aug. 27, 2014) (attached to
Plaintiff’s motion as Exhibit C). Plaintiff states in his reply that Altschuler involved “the same
business entity and services used in the pending matter.” Pl.’s Reply ¶ 2.
23
Altschuler, C.A. No. N12C-06-202 JRJ, at 1–2 (footnote omitted).
5
in understanding the expert’s testimony in this case.24 Accordingly, the Court
awards the full $1,373.85 for video processing and interactive deposition fees and
$2,125.00 for the creation and editing of the custom visual aids.
II. Prejudgment Interest
10. Plaintiff is entitled to an award of prejudgment interest pursuant to 6
Del. C. § 2301(d),25 having extended a written settlement demand in the amount of
$149,876.54 on September 8, 2022.26 While prejudgment interest is available as a
matter of right in Delaware, the Court has discretion to reduce the recoverable
amount if, inter alia, the plaintiff has delayed the prosecution of an action.27
11. Defendant argues that “the right to pre-judgement [sic] interest should
be suspended during the period of time that the Court was unable to try the case”
due to the declaration of judicial emergency, which prevented jury trials from taking
place between March of 2020 and July of 2021.28 Plaintiff responds that Defendant
24
The Court is also not persuaded by Defendant’s argument that, because Plaintiff could have used
paper exhibits to guide the expert testimony (as Defendant’s counsel opted to do), the cost of
producing virtual visual aids should be likened to the costs for preparing and photocopying paper
trial exhibits for a party’s own use. See Ripsom v. Beaver Blacktop, Inc., 1989 WL 147336, at *1
(Del. Super. Dec. 4, 1989) (concluding that the “monies spent by the plaintiff for printing and
photocopying various papers and documents are not recoverable costs” because “the prints and
photocopies were made for the use of the plaintiff and his attorney and not the Court.”
(emphasis supplied)).
25
6 Del. C. § 2301(d) provides in pertinent part as follows:
In any tort action for compensatory damages in the Superior Court . . . seeking
monetary relief for bodily injuries, . . . interest shall be added to any final judgment
entered for damages awarded, . . . commencing from the date of injury, provided
that prior to trial the plaintiff had extended to defendant a written settlement
demand valid for a minimum of 30 days in an amount less than the amount of
damages upon which the judgment was entered.
The interest rate is calculated pursuant to 6 Del. C. § 2301(a) and is not in dispute.
26
Pl.’s Mot. Ex. D.
27
See Bishop, 2019 WL 2009331, at *5 (“If a plaintiff has delayed the prosecution of an action,
the Court may, in its discretion, reduce the amount of prejudgment interest recovered.”); Permint,
2022 WL 2443009, at *2 (“Though Delaware courts have found pre-judgment interest may be
modified where the plaintiff is at fault for the delay, there is nothing to suggest that Plaintiffs
delayed the prosecution of its [sic] claims here.” (internal footnote omitted)).
28
Def.’s Resp. at 5. Plaintiff concedes that there was “an undeniable 13-month delay in the
6
nevertheless “maintained all of the benefit it received by retaining plaintiff’s money
during the 13-month delay in prosecution.”29
12. In exercising its discretion, the Court looks to the purposes of the
prejudgment interest statute. “The General Assembly enacted 6 Del. C. § 2301(d) to
promote earlier settlement of claims by encouraging parties to make fair offers
sooner, with the effect of reducing court congestion.”30 In addition, “[p]rejudgment
interest serves two purposes: first, it compensates the plaintiff for the loss of the use
of his or her money; and, second, it forces the defendant to relinquish any benefit
that it has received by retaining the plaintiff’s money in the interim.”31 Thus, “the
strong public policy . . . favors providing full compensation to prevailing plaintiffs
who do not contribute to the defendant’s delay in paying.”32
13. Moreover, in Permint v. Kia Motors America, Inc., this Court addressed
precisely the same argument advanced by Defendant here and concluded that the
delay caused by the pandemic did not warrant a pause in the accrual of interest,
reasoning, inter alia, that the pandemic did not “impede[] Defendants’ opportunities
to negotiate a settlement.”33 This result is consistent with Delaware case law finding
that prejudgment interest need not be suspended because of delays caused by the
Court’s calendar.34
prosecution of this case due to Covid [sic] and not the actions of the parties . . .” Pl.’s Reply ¶ 3.
The Court notes, however, that the second scheduled trial date of April 18, 2022, was extended by
joint request of the parties due to Plaintiff’s additional medical treatment related to his claims
against Defendant. See D.I. 33 (letter dated December 13, 2021, requesting a new trial date on
behalf of both parties).
29
Pl.’s Reply ¶ 3.
30
Rapposelli v. State Farm Mut. Auto. Ins. Co., 988 A.2d 425, 427 (Del. 2010), as corrected (Feb.
5, 2010).
31
Brandywine Smyrna, Inc. v. Millennium Builders, LLC, 34 A.3d 482, 486 (Del. 2011).
32
Id. at 487 (citing Moskowitz v. Mayor and Council of Wilmington, 391 A.2d 209, 211 (Del.
1978)).
33
2022 WL 2443009, at *2.
34
See, e.g., Bishop, 2019 WL 2009331, at *6 (concluding that it “would be unreasonable to
penalize” a plaintiff seeking prejudgment interest “for delays caused by the business and priorities
7
14. In light of these considerations, the Court concludes that Plaintiff is
entitled to the full amount of prejudgment interest requested.35
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Costs and Interest is
GRANTED IN PART and DENIED IN PART. Defendant shall pay $86,619.03
in prejudgment interest, as well as total costs of $7,177.10 itemized as follows:
(a) $778.25 in electronic service and filing fees;
(b) $150.00 for the trial fee to the Prothonotary;
(c) $2,750.00 for the expert witness fee for the video trial deposition of
Steven M. Dellose, M.D.;
(d) $1,373.85 for video processing and interactive deposition fees; and
(e) $2,125.00 for creating and editing of custom visual aids.
IT IS SO ORDERED.
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
of this Court” after a trial was continued for scheduling reasons).
35
The out-of-state authority relied on by Defendant would not compel a different result even if
this Court were to follow it. The Supreme Court of New Jersey has held that the contractual rate
of prejudgment interest could be suspended where there was a “thirteen-month judicial delay that
was not caused by the parties or their attorneys.” N. Bergen Rex Transp., Inc. v. Trailer Leasing
Co., 730 A.2d 843, 851 (N.J. 1999). That case is distinguishable for two reasons. First, the delay
in that case was caused by the trial court’s having reserved decision after trial for 13 months,
“contrary to the administrative practice requiring reserved decisions to be completed within sixty
days.” Id. Second, the prevailing party was nonetheless “entitled to interest in accordance with
equitable principles” under New Jersey law, and the court simply suspended the higher contractual
rate of interest with respect to the 13-month delay. Id.8