Burton, et al. v. Christiana Care Health Services, Inc., a/k/a Christiana Care Health System, et al.

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SUPERIOR COURT OF THE STATE OF DELAWARE WILLIAM C. CARPENTER, JR. JUDGE NEW CASTLE COUNTY COURTHOUSE 500 NORTH KING STREET, SUITE 10400 WILMINGTON, DE 19801-3733 TELEPHONE (302) 255-0670 September 17, 2004 Richard Galperin, Esquire 222 Delaware Avenue P.O. Box 2306 Wilmington, DE 19899 Mason E. Turner, Esquire 1310 King Street P.O. Box 1328 Wilmington, DE 19899 David G. Culley, Esquire 300 Delaware Avenue, Suite 1100 P.O. Box 2092 Wilmington, DE 19899 Ben Castle, Esquire Neilli Mullen Walsh, Esquire 1000 West Street, 17 th Floor P.O. Box 391 Wilmington, DE 19899-0391 RE: Soudabeh M. Burton, W idow of James T . Burton, Jr., James W. Burton, Son of James T. Burton, Jr., and James W. Burton, Personal Representative of the Estate of James T. Burton, Jr. v. Christiana Care Health Services, Inc., a/k/a Christiana Care Health System , a corpo ration of the State o f Delaw are, and Delaware Surgical Group, P.A., a corporation of the State of Delaware C.A. No. 01C-10-267 WCC Submitted: April 29, 2004 Decided: September 17, 2004 Dear C ounsel: The Court has before it three pending motions in the above-captioned matter. They are Plaintiff s Motion for A Partial New Trial, Christiana Care s Motion for Costs and Delaware Surgical Group s Motion to Tax Costs. T he Cou rt will add ress each one sep arately. The first is Plain tiff s Mo tion for A Partial N ew Tr ial, arguin g that the jury s finding of negligence on behalf of the hospital staff was not the proximate cause of Mr. Burton s death is so inconsistent and unsupported by the evidence that a new trial as to Christiana Care Health Serv ices is warranted. The Court is unpersuaded by this argument and for the reasons set forth b elow, th e Motio n will be denied. First, the Plaintiff s case as to the negligent conduct by the nursing staff was not particularly persuasive. At best there was perhaps some issue as to the nurses monitoring of the NG tube the evening of Mr. Bu rton s death after he had returned from some additional testing or even perhaps the Plaintiff s incessan t comm ents abo ut the pro priety of p rovidin g ice chips as comfo rt to Mr . Burton finally reso nated w ith the jury . However, to the extent that there was some evidence to support a negligent finding, there was overwhelming evidence from the med ical profe ssionals who testified both for the Plaintiff and the Defendant that wo uld easily provide a basis for the jury to conclude that this negligence had noth ing to do with Mr. Burton s death. Doctors Roeder, Traube and Conway all would have provided a basis for the jury to reach th is conclusion. While Mr. Burton s death was tragic, the evidence supported a finding by the jury that the conduct of the nursing staff did not cause his death. The jury was appropriately and correctly instructed, and their find ings w ere not in consistent or against the weight of the evidence.1 As such, the Motion for A Partial New Trial is denied. The next mo tion is D efendan t Christiana Care H ealth Services, In c. s request that they b e reimbu rsed for costs pu rsuant to Super ior Cou rt Rule 54 and 10 Del. C. § 8906. While costs are generally awarded to the prevailing party, the Court does have discretion to review the bills to ensure they are reasonable and appropriate.2 Doctor Traube has submitted a bill for which the Defendant Christiana Care Health Services, Inc. is requesting $7,820.45. The Court will not award travel time , particular ly at $400 an hour, sinc e it was the D efendant s choice to hire an expert that was not in the local vicinity. It is also impossible from the expert s billing to ascertain what hours are associated with consultation and those related to court time. The Court did not 1 Rowe v. Kim , 824 A.2d 19, 23 (Del. Super. Ct. 2003). 2 Donovan v. D elaware Water & Air Res. Comm n , 358 A.2d 717, 722-723 (Del. 1976). record the amo unt of tim e that Dr . Traube actu ally spent te stifying, so it will accept the Plaintiff s assertion, which is unrebutted by the defense, that it was approximately two hours of court time relating to this testimony. Allowing for a reasonable period of preparation, the Court awards 4 hours at a rate of $500 per hour for a total of $2,000.00 The next area of requested reimbursement is the costs associated with the RN expert, Debra Jackson. Again, the billing reflects three hours of actual testimony a nd prep aration tim e on the d ay she testif ied. Un fortuna tely her bill does not reflect an hourly rate or anything specific as to the charge for actual testimony. If couns el for D efendan t Christian a Care H ealth Services will pro vide this in formation to th e Cour t by Octo ber 15, 2 004, it will issue an orde r in relation to this testim ony. Finally, the Defendant Christiana Care Health Services also argues and requests reimbursement for the exhibits it prepared for trial. This requ est will be denied. The preparation of these exhibits was done in spite of the technology available to the defense in the courtroom which would have made the preparation o f these ex hibits totally unnece ssary. W hile it is hard to break defense counse l s habits which he has developed over years of excellent practice, the Court should not endorse the practice by awarding these costs. The final motion which the Court has before it is that of Defendant Delaware Surgic al Grou p reque sting reimbursement for their expert, Dr. Belgrade. Unfortunately, the bill of Dr. Belgrade provides so little detail the Court cannot perform its oversight function to determine its reasonableness. As an example, the Court is unable to determine wh ether the $ 3000.0 0 bill is simply a one time established fee that Dr. Belgrade charges regardless of the amount of actual trial te stimony or wh ether this is based u pon so me hou rly rate. As a result, if counsel for Delaware Surgical Group will provide to the Court a more detailed submission as to Dr. Be lgrade s billing, it will consider awarding an amount in reference to his testimony. The Court would ask that this infor mation a lso be pr ovided by Octo ber 15, 2 004. I believe this resolves all outstanding motions that are presently before the Court, and again I appreciate coun sel s expert presentation during the trial of this matter. All of you represented your clients well and in an extreme ly profes sional m anner. Sincerely yours, /s/ William C. Carp enter, Jr. Judge William C. Carpenter, Jr. WCCjr:twp cc: Aimee Bowers, Case Manager

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