IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

BRYANT A. DRAYTON and ) SABRINA RICHARDSON, ) ) C.A. No. 08C-03-005 RRC Plaintiffs, ) ) v. ) ) MILLARD E. PRICE, ) ) Defendant. ) )

Submitted: February 3, 2010 Decided: April 19, 2010

Upon Defendant’s Motion for New Trial.

DENIED.

Upon Plaintiff Bryant Drayton’s Motion for Costs and Prejudgment Interest. GRANTED.

MEMORANDUM OPINION

Kenneth M. Roseman, Esquire, Kenneth M. Roseman, P.A., Wilmington, Delaware, Attorney for Plaintiffs Colin M. Shalk, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, Delaware, Attorney for Defendant COOCH, J.

I. INTRODUCTION Both of these post-trial motions arise from a motor vehicle collision

that occurred on March 25, 2007 at which time the vehicle driven by

Plaintiff, Bryant Drayton, was struck by a vehicle driven by Defendant,

Millard Price.1 Co-Plaintiff, Sabrina Richardson, was a passenger in

Plaintiff’s car. A trial was scheduled in this Court for November 30, 2009.

On October 29, 2009, Plaintiff Drayton made a written demand to

settle his claim for $34,000.2 Defendant rejected this demand and proceeded

to trial.3 The only issues at trial were whether Defendant’s negligence

proximately caused injury to Sabrina Richardson, the amount of damages, if

any, owed to Sabrina Richardson, and, causation being admitted with respect

to Plaintiff Drayton, what amount of damages were appropriate for him.4

During the trial, Plaintiff Drayton moved for judgment as a matter of

law as to his medical expenses. His expert, who was also his treating

physician, did not testify explicitly that the medical expenses were

“reasonable” and “necessary.” Defendant did not object to evidence of the

medical bills, and proffered no evidence to the contrary, but did object to

1 Defendant also filed a motion for costs and interest against Co-Plaintiff Richardson in connection with this case. That motion was granted as unopposed. 2 Pls. Mot. for Costs and Interest at ¶ 1. 3 Id. at ¶¶ 3-4. 4 Dkt. 52.

2

judgment as a matter of law because, as Defendant argued, it was Plaintiff’s

burden to prove that those medical expenses were “reasonable and

necessary.” This Court nevertheless granted Plaintiff’s motion for judgment

as a matter of law and at the end of the trial instructed the jury that they were

required to award damages to Plaintiff Drayton in an amount of at least

$14,771 for his medical expenses, all of which stemmed from services

rendered by his treating physician or by others in his office.5

The jury ultimately found that Defendant’s negligence was not the

proximate cause of injury to Sabrina Richardson and accordingly awarded

no damages. However, the jury awarded Plaintiff Drayton general damages

of $31,250 plus medical expenses in the amount of $14,771 for a total of

$46,021.6

Defendant filed a motion for new trial, arguing that this Court’s

decision to grant Plaintiff’s request for judgment as a matter of law as to the

medical expenses of Plaintiff Drayton was erroneous because Plaintiff had

failed affirmatively to establish that those expenses were both “reasonable

and necessary.”7 The issue thus raised in Defendant’s motion for new trial

is whether this Court’s decision to grant judgment as a matter of law to a

5 Dkt. 57. 6 Def. Mot. for New Trial at ¶ 1. 7 Id. at ¶¶ 8-10.

3

plaintiff in a personal injury case instructing the jury to award a plaintiff

medical expenses was proper where (1) the plaintiff calls his treating

physician to testify about that physician’s own medical expenses, (2) the

treating physician does not explicitly state that the medical expenses were

“reasonable and necessary,” and (3) the defendant fails to adduce any

contrary evidence that the medical expenses were either unreasonable or

unnecessary, or both.

Additionally, Plaintiff Drayton has filed a motion for costs and

prejudgment interest. The first issue in Plaintiff’s motion for costs and

prejudgment interest is whether Plaintiff Drayton’s October 29, 2009 letter

offering to settle this case for $34,000 was a valid demand pursuant to 6 Del.

C. § 2301(d) because that letter (1) did not specifically state that the demand

was “valid for thirty days” even though the demand did in fact remain open

for thirty days, and (2) did not specifically reference the statute.8 Thus, the

first issue presented is whether a demand made pursuant to 6 Del. C. §

2301(d) must state that that demand is valid for thirty days if the demand

did, in fact, remain open for thirty days and also explicitly reference the

statute.

8 Pls. Mot. for Costs and Interest at ¶ 4.

4

The second issue presented in Plaintiff’s motion for costs and

prejudgment interest is what amount of expert witness fees Plaintiff may

recover from Defendant for the deposition testimony of his medical expert,

Dr. Craig Sternberg.

This Court holds that there was no error in granting Plaintiff

Drayton’s motion for judgment as a matter of law for the undisputed medical

bills because Plaintiff Drayton’s expert witness was the treating physician

testifying to his own medical bills, and Defendant did not proffer or produce

any evidence that the medical bills were unreasonable or unnecessary.

Additionally, this Court holds that Plaintiff’s October 29, 2009 letter

offering to settle the case complied with 6 Del. C. § 2301(d) because that

statute does not explicitly require that the demand letter state that the

demand is “valid for thirty days;” the Court does not read that requirement

into the statute. All that is required in that connection by 6 Del. C. § 2301(d)

is that a demand remain open for thirty days.

Finally, the Court has determined that the appropriate award for the

deposition testimony of Dr. Sternberg is $1,100.

Accordingly, Defendant’s motion for a new trial is DENIED.

Plaintiff Drayton’s motion for costs and prejudgment interest is

GRANTED.

5

II. FACTS and PROCEDURAL HISTORY

This case arises from a March 25, 2007 motor vehicle accident that

occurred on Pulaski Highway in New Castle.9 As a result of this accident,

Plaintiffs brought suit against Defendant for their separate injuries. Trial

was scheduled for November 30, 2009.

Prior to trial, Plaintiff, Bryant Drayton made a written demand

pursuant to 6 Del. C. § 2301(d) to settle his claim for $34,000. The body of

the letter from Plaintiff’s counsel to Defendant’s counsel stated in its

entirety:

October 29, 2009 This is to confirm that I have been authorized to accept $34,000 in full settlement of the above matter.10

Defendant filed an offer of judgment to Plaintiff Drayton on

November 5, 2009 in the amount of $17,500.11 Defendant never accepted

Plaintiff’s demand, and Plaintiff Drayton never accepted Defendant’s offer

of judgment.

On the first day of trial, this Court inquired as to the status of any

stipulation concerning Plaintiff Drayton’s medical bills.12 Defendant

informed the Court that there would be no objection to the introduction of 9 Dkt. 1. 10 Pls. Mot. for Costs and Interest Ex. A. 11 Id. at ¶ 2. 12 Trans. of Nov. 30, 2009 Trial at 2-3.

6

medical bills as evidence, but stated that “this agreement was not a

stipulation that the bills were reasonable and necessary and proximately

related to the accident.”13

Thereafter, Plaintiff Drayton called Dr. Craig Sternberg as a witness,

who testified by videotape. Dr. Sternberg was board certified in “physical

medicine and rehabilitation.”14 His qualifications as an expert were not

challenged. His video deposition had been taken on November 24, 2009.

Dr. Sternberg had treated Plaintiff Drayton in connection with his motor

vehicle accident. Dr. Sternberg testified as to the medical treatments he

gave Plaintiff Drayton and ultimately concluded, based on a review of the

medical records, that Plaintiff Drayton’s injuries were causally related to the

March 25, 2007 automobile accident.15 At no time during the deposition of

Dr. Sternberg was the doctor shown copies of the medical bills and no

question was ever asked by either attorney specifically addressing the

necessity or reasonableness of Dr. Sternberg’s medical bills (including

medical bills generated by other health care providers in Dr. Sternberg’s

medical office).16

13 Def. Mot. for New Trial at ¶ 6. 14 Id. Ex. B at 3. 15 Id. at Ex. B. 16 Id. at ¶ 5.

7

After trial deposition testimony from Dr. Sternberg, Plaintiff’s counsel

moved for a judgment as a matter of law as to Defendant’s liability for

Plaintiff Drayton’s medical bills.17 The basis of the motion was that

Plaintiff had produced uncontradicted evidence of his medical bills, and,

thus, there was no way for a jury to find that Plaintiff Drayton could not

recover his medical expenses since causation of the injuries was not i

dispute. Although Defendant opposed this motion on the basis that Plaintiff

Drayton had an affirmative obligation to establish that the medical bi

“reasonable and necessary,” Defendant proffered no evidence or other

testimony during the trial indicating that any of the bills was unreasonable or

unnecessary. This Court granted Plaintiff’s motion for judgment as a matter

of law, thereby acknowledging that Plaintiff had met his burden of

establishing the reasonableness and necessity of those medical bills, and

instructed the jury that they were required to award damages to Plaintiff

Drayton in an amount of at least $14,771.

n

lls were

The jury ultimately returned a verdict against Sabrina Richardson and

awarded her no damages. However, the jury awarded Plaintiff Drayton

$31,250 plus medical expenses in the amount of $14,771 for a total of

$46,021.

17 Id. at ¶ 1.

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III. CONTENTIONS OF THE PARTIES

A. Defendant’s Motion for New Trial

In support of his motion for new trial, Defendant argues that “plaintiff

has the burden of demonstrating the reasonableness and necessity of the

medical treatment provided.”18 Defendant asserts that Dr. Sternberg’s

testimony never contained a reference to the reasonableness or necessity of

the medical expenses and “[t]o provide that proof or to meet that burden the

plaintiff is required to produce expert testimony.”19 Defendant argues that

he was under no obligation to ask Dr. Sternberg about the reasonableness or

the necessity of the medical bills on cross-examination when Plaintiff’s

counsel did not do so in his direct examination. Thus, Defendant argues,

Plaintiff failed to meet his burden of demonstrating the reasonableness and

necessity of medical expenses, and this Court “overstepped its bounds by

granting a judgment” even though Defendant had no evidence that the

medical bills were in fact unreasonable or unnecessary.20

In response, Plaintiff Drayton argues that “[t]he admission of the

medical bills is prima facie evidence that the bills were reasonable.”21

Plaintiff contends that “[t]he admission of the medical bills into evidence 18 Id. at ¶ 8. 19 Id. 20 Id. at ¶ 9. 21 Pls. Resp. to Mot. for New Trial at 2.

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and the uncontroverted expert testimony of Dr. Craig Sternberg established

that the plaintiff’s medical bills of $14,771were reasonable and made

necessary by the motor vehicle collision that was admittedly caused by the

defendant’s negligence.”22

B. Plaintiff’s Motion for Costs and Prejudgment Interest

Plaintiff has also filed a motion for costs and prejudgment interest. In

support of that motion, Plaintiff Drayton argues that the demand letter sent

to Defendant’s counsel on October 29, 2009 offering to settle Plaintiff’s case

for $34,000 was a valid demand, sufficient to invoke the provisions of 6 Del.

C. § 2301(d).23 This demand was never accepted by Defendant, and

Plaintiff ultimately recovered more than $34,000 at trial.24 Thus, Plaintiff

Drayton asserts that he is entitled to prejudgment interest because a valid

demand to settle was made, Defendant did not accept the demand prior to

trial, and the jury awarded damages to Plaintiff Drayton in an amount grea

than the sum demanded in settle

ter

ment.25

Additionally, Plaintiff requests expert witness fees and Court costs

because Plaintiff was the prevailing party at trial. Plaintiff Drayton has

submitted the following bills:

22 Id. 23 Pls. Mot. for Costs and Interest at ¶ 1. 24 Id. at ¶ 3. 25 Id. at ¶ 4.

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a. Court Costs: $688 b. Deposition Testimony of Dr. Craig Sternberg: $2,175 c. Video taping fee of Deposition of Dr. Craig Sternberg: $46126

In response, Defendant argues that Plaintiff has no right to recover

prejudgment interest because the demand made by Plaintiff did not comply

with 6 Del. C. § 2301(d), and, therefore, was not “valid.”27 Defendant

argues that in order for an demand to be “valid” pursuant to 6 Del. C. §

2301(d), Plaintiff must explicitly state in the demand letter that the demand

is “valid for thirty days.”28 Additionally, Defendant asserts that “there must

be something about the demand which alerts the defense that the provisions

of [6 Del. C. § 2301(d)] are being used.”29

Finally, Defendant argues that the expert witness fees related to Dr.

Sternberg’s testimony are “unreasonable.”30 Defendant argues that “Dr.

Sternberg had to do no more than to sit in his own office and then conclude

26 Plaintiffs later amended the cost of videotaping to $370.00. Pls. Reply. Br. to Mot. for Costs and Interest at ¶ 1. 27 Def. Resp. to Mot. for Costs and Interest at ¶¶ 4-7. 28 Id. at ¶ 3. 29 Id. at ¶ 10. 30 Defendant does not appear to argue that the costs related to videotaping and other Court costs are “unreasonable.” Accordingly, this Court has not evaluated the reasonableness of those fees. See Def. Resp. to Mot. for Costs and Interest; Def. Sur-Reply to Mot. for Costs and Interest.

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the deposition in the same place.”31 Thus, Defendant urges this Court to

award a more reasonable fee “between $1,000 to $1,200.”32

IV. DISCUSSION

A. Defendant’s Motion for New Trial

The issue raised in Defendant’s motion for new trial is whether this

Court’s decision to grant judgment as a matter of law to a plaintiff in a

personal injury case instructing the jury to award a plaintiff’s medical

expenses was proper where (1) the plaintiff calls his treating physician to

testify about that physician’s own medical expenses, (2) the treating

physician does not explicitly state that the medical expenses were

“reasonable and necessary,” and (3) the defendant fails to adduce any

contrary evidence that the medical expenses were either unreasonable or

unnecessary, or both.

i. Standard of Review for Granting a Motion for Judgment as a Matter of Law. Motions for judgments as a matter of law made at trial are governed

by Superior Court Civil Rule 50.

When determining a motion for judgment as a matter of law under Rule 50, the Court does not weigh the evidence but, rather, views the evidence in the light most favorable to the non-moving party and,

31 Def. Sur-Reply to Mot. for Costs and Interest at 2. 32 Id.

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drawing all reasonable inferences therefrom, determines if a verdict may be found for the party having the burden.33

“Juries are not permitted to make [] factual findings in favor of a party at

trial if ‘there is no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue....”34 “The court must determine if under any

reasonable view, the jury could find in favor of the non-moving party.”35

ii. Because Dr. Sternberg Testified to his Own or His Office’s Own Medical Expenses, the Only Reasonable Inference was that Dr. Sternberg Believed that the Medical Expenses were Reasonable and Necessary. a. The “Reasonableness” Requirement

In attempting to recover medical expenses, a plaintiff must prove that

the medical expenses were causally related to the accident and that the

medical expenses incurred were “reasonable and necessary.”36 With respect

to the “reasonableness” prong, a plaintiff must produce expert testimony.37

As stated previously, causation was conceded by Defendant.

Plaintiff called Dr. Sternberg, his treating physician, as his only

expert. Dr. Sternberg was board certified in “physical medicine and

33 Gass v. Truax, 2002 WL 1426537 (Del. Super.). 34 Carney v. Preston, 683 A.2d 47, 54 (Del. Super. 1996). 35 Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 530 (Del.1998). 36 See Dennis v. State Farm Mut. Auto. Ins. Co., 2008 WL 4409436, at * 2 (Del. Super.) (granting a new trial where a plaintiff had failed to produce expert testimony that medical bills were reasonable, necessary, and causally related to the accident). 37 Id.

13

rehabilitation.”38 His expertise was not challenged. Dr. Sternberg testified

by video deposition about the medical treatments he provided to Plaintiff

and stated that those treatments were causally related to Plaintiff’s

automobile accident.39 Dr. Sternberg also testified about other accident-

related treatment given by other members of his practice.40 At no time was

Dr. Sternberg shown a copy of bills for the medical services he provided,

and neither Plaintiff’s nor Defendant’s counsel asked Dr. Sternberg whether

he thought the expenses for the treatments he and his staff provided were

reasonable.41

Despite Dr. Sternberg’s failure explicitly to testify to the

reasonableness of the medical expenses, the factual circumstances of this

particular case support this Court’s entering judgment as a matter of law in

favor of Plaintiff on the issue of the reasonableness of Plaintiff’s medical

expenses. Even though expert testimony is required to establish

“reasonableness” of medical expenses, and even though Dr. Sternberg only

implicitly testified that the medical bills were “reasonable or necessary,” the

38 Def. Mot. for New Trial Ex. B at 3. 39 Id. at 13. 40 Specifically, these treatments appear to be a lumbar injection and continuing chiropractic care. 41 “[T]oo often, the physicians are called, examined, and released without ever being asked a single question about the bills. If an expert is going to be on the stand anyway, there is no reason to risk any essential element of foundation on the issues of medical damages . . . All that is required is some extra preparation.” 23 Am. Jur. Proof of Facts 3d 243 § 20 (1993).

14

only reasonable inference that could be drawn from Dr. Sternberg’s

testimony is that Dr. Sternberg held the opinion that his own medical

expenses were reasonable.42

Defendant’s argument that explicit testimony by some expert was

needed on the issue of reasonableness “exalts form over substance.”43 The

Supreme Court has previously held in a medical negligence case in which an

expert did not express opinions in “perfect legalese” that an expert need not

utter “magic words” and this Court must evaluate “the substance of the

proffered testimony as a whole . . . .”44

Jurisdictions are not uniform in what is sufficient evidence to establish

“reasonableness” of medical expenses:

In a large number of cases it has been held or recognized that in a personal injury or death action evidence of the amount charged . . . is not, in itself, evidence of the reasonableness of such expenses, but that

42 Cf. Flood v. Riley, 2002 WL 32067552, at * 2 (Del. Super.) (holding that a medical expert does not need to “utter the words ‘reasonable medical probability’ in order for his testimony to be admissible.”). 43 Cf. Barriocanal v. Gibbs, 697 A.2d 1169, 1172 (Del. 1997) (holding that the trial court abused its discretion in excluding testimony from an expert witness that “did not express his medical opinions in perfect ‘legalese[,]’” and the trial court’s holding “exalt[ed] form over substance.”); Air Mod Corp. v. Newton, 215 A.2d 434, 438 (Del. 1965) (“Semantics must given way in the search for a fair and just result; and the distinction between words like ‘possible’, ‘probable’, ‘reasonable certainty’, and the like, may not be over-emphasized. A ‘could have’ answer of a medical witness, such as we have here, may not be isolated and considered alone; it must be considered in the light of all of the other evidence in the case.”). 44 Barriocanal, 697 A.2d at 1172-73; see also Pawtucket Mut. Ins. Co. v. J.B. Research, Inc., 2000 WL 1611079, at * 2 (Del. Super.) (“Similarly, while experts must testify to within a reasonable degree of probability in their fields of expertise, [the argument that that particular language is necessary] is little more than a “Gotcha!” . . . .”).

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there must be some other evidence showing their reasonableness . . . Thus, in order to recover accrued medical . . . expenses as an element of damages in a personal injury or death action, the plaintiff’s attorney should be prepared to prove not only the amount of such expenses but also the reasonableness thereof, unless the rule prevailing in his jurisdiction is to the effect that evidence of the amount of liability incurred . . . is in itself evidence of the reasonableness of the charge . . . Testimony to be elicited from such a witness must be specifically directed so as to prove the reasonableness of a particular charge, since testimony in general as to . . . the value thereof does not necessarily show the reasonableness . . . In jurisdictions where evidence of payment of medical expenses is deemed evidence of the reasonableness of such expenses, the plaintiff’s attorney can prove the fact of such payment by asking the plaintiff or his physician whether the expenses in question have been paid, and it is, of course, not necessary for the attorney to introduce any independent evidence to show the reasonableness . . . If the plaintiff’s attorney seeks to introduce, or has introduced evidence of an amount charged or paid for medical expenses without proof of the reasonableness of such expenses, it is the duty of defense counsel to object to the admission of the plaintiff’s evidence or to move to strike it.45

45 See Necessity and sufficiency, in personal injury or death action, of evidence as to reasonableness of amount charged or paid for accrued medical, nursing, or hospital expenses, 12 A.L.R.3d 1347 (West 2010). This Court expresses no opinion on which, if any, of the above cited standards Delaware follows. However, it appears, since no Delaware case has directly addressed this issue, that “[t]estimony to be elicited from [an expert witness] must be specifically directed so as to prove the reasonableness of a particular charge, since testimony in general as to . . . the value thereof does not necessarily show the reasonableness . . .” Id. Indeed, some jurisdictions appear particularly strict with these requirements. As one commentator has noted, “[t]he issue of reasonableness of charges is usually apparent and this issue should be resolved prior to trial. I am not aware of a documented case [in Alabama] where a treating physician testified that his/her charges were not ‘reasonable’ or the patient’s treatment was not medically ‘necessary.’ Nevertheless, the question must be asked, answered, and the witnesses’ answer must be presented to the trier of fact in order to satisfy the element of damages.” James G. Bodin, Authentication, Foundation, Reasonableness and Causation: Admission of Medical Records and the Burdens of Proof in the Injury Case, 64 Ala. Law. 382 (2003) (emphasis retained) (discussing the requirements of Alabama law). Unlike Alabama law, Barriocanal suggests that “magic words” such as “reasonable and necessary” can be unnecessary in Delaware. See Barriocanal, 697 A.2d at 1172.

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Here, Dr. Sternberg was the treating physician and was testifying to

all the treatments of Plaintiff Drayton rendered at his practice.46 The only

reasonable inference that can be drawn based on Dr. Sternberg’s testimony

is that Dr. Sternberg was of the opinion that the fees he and the other

practitioners in his practice charged for the treatments were “reasonable.”

b. The “Necessary” Requirement

The same analysis utilized in the preceding section regarding

“reasonableness” applies by analogy to the “necessity” requirement. There

was implicit testimony from Dr. Sternberg that the medical treatments were

“necessary” in his testimony about Plaintiff Drayton’s symptoms and the

treatments he ordered to treat each symptom.

46 Defendant’s Reply brief argues that “[a]lthough Dr. Sternberg may have ordered the treatment much of it was not given by him and one of the bills from the Limestone Medical Center of over $3,000 was for a facility fee for a facility not owned or related to Dr. Sternberg.” Reply Br. ¶ 3. Despite this contention, it appears from the record that the treatments were all performed by practitioners in Dr. Sternberg’s office.

The Court: All right. One moment. Your response? Mr. Roseman, your response to Mr. Shalk’s argument that the $14,771 does not only include Dr. Sternberg’s charges, but it involved Delaware Chiropractic expenses, Ginger Chase? Was that his name? Mr. Shalk: Chiang. The Court: Chiang, Ginger Chiang, and others? Mr. Roseman: They’re all in his office, and it’s all the treatment that he ordered. The Court: Are they both out of his office? Mr. Roseman: Yes. And the bill for, I think it was $3,200 was the surgery center fee for the injection Dr. Chiang performed.

Trans. of Dec. 1, 2009 Trial and 27. Thus, it appears from the record that all the expenses were related to treatments that Dr. Sternberg or members of his practice performed.

17

Q: Doctor, I know that you ordered an MRI scan shortly after that initial visit. Could you explain to the jury why you ordered the MRI scan, what you suspected, and why you suspected it? A: The reason for ordering an MRI scan is to be sure that the injury that he sustained was muscular and rather than having any problems with his disc or nerve-type problem. And the MRI scan was performed, and he does show or did show a small herniation with some – with what we call an annular tear . . .47 * * * Q: Doctor, once you had the benefit of the MRI results, what treatment recommendations did you make and why? A: Well, initially, because he was doing fairly well in therapy, I initially kept him in the therapy program. And he was maintaining the therapy for several months, did pretty well; however, when he hit a, what we would call a plateau at that, I recommended he undergo a lumbar injection, which he did.48 * * * Q: When you wrote your report in April of 2008, did you have an opinion concerning Mr. Drayton’s continuing needed for medical treatment? A: My feeling was that he might need a few more visits at that time. And it turns out he’s needed occasional visits here and occasional needs. The last time I saw him, I gave him some antiinflammatory medicine.49

Based in part on Dr. Sternberg’s use of the word “need” and his

testimony about why he ordered the particular treatments, the only

reasonable inference was that Dr. Sternberg held the opinion that each

treatment he ordered was “necessary” to treat Plaintiff Drayton’s symptoms.

c. The Significance of Conflicting Evidence

Although the above inferences were theoretically rebuttable,

Defendant did not proffer any evidence to contradict Dr. Sternberg’s implicit

opinion that his own medical expenses and the medical expenses of other

47 Def. Mot. for New Trial Ex. B at 7. 48 Id. at 9. 49 Id. at 14.

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persons in his medical practice were reasonable and necessary. Although

one treatise has stated that “[o]rdinarily, questions as to whether expenses

incurred as a result of the defendant’s wrongful act were . . . reasonable are,

on conflicting evidence, for determination by the jury[,]”50 in the present

case there is no “conflicting evidence” as to reasonableness or necessity

because Defendant did not offer evidence to rebut the inference that Dr.

Sternberg thought his own bills and those of other practitioners in his office

were reasonable and necessary.

This Court holds that there was no error in granting Plaintiff’s motion

for judgment as a matter of law at trial because Plaintiff Drayton adduced

sufficient evidence at trial that his medical expenses were reasonable and

necessary.51 The Court was permitted to draw all reasonable inferences

from Plaintiff’s evidence.52 Defendant presented no evidence that the

expenses were unreasonable or unnecessary. Thus, judgment as a matter o

law in Plaintiff Drayton’s favor was proper because “there [was] no le

f

gally

50 25A Corpus Juris Secundum, Damages § 346 (2007). 51 Important to this holding is the fact that Dr. Sternberg testified as to his own medical treatments and as to those rendered by members of his practice. The Court does not reach the issue, not presented in this case, of any consequences flowing from a non-treating expert failing to testify as to the reasonableness or necessity of medical expenses of another medical expert’s medical bills. 52 Superior Court Civil Rule 50.

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sufficient evidentiary basis for a reasonable jury to find for [Defendant]” on

the issue of whether the medical expenses were reasonable and necessary.53

B. Plaintiff’s Motion for Costs and Prejudgment Interest The first issue presented in Plaintiff’s motion is whether a demand

letter that does not reference 6 Del. C. § 2301(d) in the text of the letter or

otherwise mention that the demand is “valid for thirty days,” but in fact

remains open for thirty days, is a valid demand pursuant to 6 Del. C. §

2301(d).

Additionally, this Court must determine what amount of Dr.

Sternberg’s expert witness fee is owed to Plaintiff because Plaintiff was the

prevailing party at trial. The only issue here is how much Plaintiff should

recover for the trial testimony of Dr. Sternberg, which lasted approximately

thirty-six minutes.

i. Plaintiff’s Demand Complied with the Requirements of 6 Del. C. § 2301(d) Because It Remained Open For Thirty Days

The first issue is whether Plaintiff’s demand letter was valid pursuant

to 6 Del. C. § 2301(d), which provides: 53 Carney, 683 A.2d at 54.

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In any tort action for compensatory damages in the Superior Court or the Court of Common Pleas seeking monetary relief for bodily injuries, death or property damage, interest shall be added to any final judgment entered for damages awarded, calculated at the rate established in subsection (a) of this section, 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.

Defendant argues that Plaintiff’s demand letter did not comply with

the statute because it did not explicitly reference 6 Del. C. § 2301(d) or

otherwise state that the demand was “valid for thirty days.”

This issue has previously been addressed in Brown v. Richter54 and

Jackson v. Madric.55 In both cases, the plaintiff’s counsel submitted a

demand for prejudgment interest that remained open for thirty days. In fact,

the letter sent by the plaintiff’s counsel in Brown was identical to the letter at

issue here.56

Defendant argues that “‘[v]alid is defined as having legal efficacy or

force in executing the proper legal authority and formalities . . . It is defined

also as (1) legally sufficient; binding, a valid contract and (2)

54 C.A. No. 07C-07-025 (Del. Super. 2010) (holding that a demand made pursuant to 6 Del. C. § 2301(d) is “valid” where the offer “remained open for more than 30 days.”). 55 2006 WL 488621 (Del. Super.) (holding that a plaintiff “successfully met all of the requirements of 6 Del. C. § 2301(d) [because] [b]ased upon a letter dated October 19, 2005, [plaintiff] made a written demand to [defendant] to settle the lawsuit, and the demand remained open for more than 30 days. [Plaintiff] offered to settle the case for less than the amount of damages the jury awarded.”). 56 Brown, C.A. No. 07C-07-025.

21

meritorious.’”57 However, Defendant’s own definition supports this Court’s

holding because to determine the “legal sufficiency” of a demand, the

appropriate time to examine that demand is thirty days after that demand is

made.

Defendant points the Court to the demand letter used in Rapposelli v.

State Farm Mutual Automobile Insurance Company as an example of an

“appropriate” demand letter pursuant § 2301(d). 58 The demand letter in

Rapposelli had stated:

Dear [Defendant’s counsel]: This is my client’s settlement proposal in this case. [Plaintiff] is willing to accept the sum of $74,000 in full and final resolution of all claims asserted against [Defendant] in this action. This offer will remain open for thirty days after which, if not accepted, is withdrawn. This settlement offer is made pursuant to 6 Del. C. §2301(d). 59

Notably, Rapposelli did not address the proper form of a demand

letter pursuant to 6 Del. C. § 2301(d) because the form of that letter was not

at issue. Rapposelli held that the statute’s use of the phrase “tort action for

57 Def. Sur. Reply to Mot. for Costs and Interest at ¶ 5 (quoting Merriam-Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary/valid, and Black’s Law Dictionary (7th Ed. 1999)). 58 Rapposelli v. State Farm Mut. Auto. Ins. Co., 988 A.2d 425 (Del. 2010). 59 The exact language of the demand letter in Rapposelli was provided by Defendant in his February 3, 2010 submission to this Court. Dkt. 67.

22

compensatory damages” included actions deriving from a contract between

an insured and an insurer for underinsured motorist coverage.60

The form of demand letter in Rapposelli is preferable to the letter sent

by Plaintiff’s counsel in the instant case because the former unmistakably

states that the demand “will remain open for thirty days” and that the “offer

is made pursuant to 6 Del. C. §2301(d).” Nonetheless, the statute does not

explicitly require the precise language used in the Rapposelli letter. All that

is required under the statute is that the demand “remain open for thirty

days.”61

Finally, Defendant argues that “[s]tatutes [such as § 2301(d)] in

derogation of the common law must be strictly construed.”62 Although

Defendant’s statement of the law is accurate, the statute is explicit and a

strict construction actually favors Plaintiff. All that is necessary to comply

with 6 Del. C. § 2301(d) is that the demand is “valid for thirty days.”

Here, the demand was “valid for thirty days.” Defendant had the

opportunity to accept Plaintiff’s demand within thirty days, but declined to

do so. The thirty day requirement of the statute was obviously designed to

give a defendant thirty days to assess a demand and react accordingly. This

60 Rapposelli, 988 A.2d at 425-29. 61 6 Del. C. § 2301. 62 Def. Resp. to Mot. for Costs and Interest at ¶ 9.

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Court holds that Plaintiff’s letter met the requirements of 6 Del. C. § 2301(d)

where Defendant knew of the demand, had thirty days to accept the demand,

and chose not to accept the demand.63

All that is necessary for Plaintiff to comply with 6 Del. C. § 2301(d) is

for a demand to be made by that plaintiff to a defendant to settle the lawsuit

and the demand, in fact, remains open for thirty days.64 Additionally, the

jury must award the plaintiff more than the amount of the demand offer.65

Accordingly, this Court awards Plaintiff prejudgment interest from the

date of the accident on March 25, 2007 though the date of the jury verdict on

December 2, 2009. The amount is not in dispute. Plaintiff is entitled to a

total of $13,739.92 in prejudgment interest.

63 Defendant also mentions in passing that Plaintiff failed to raise the issue of prejudgment interest in either the pretrial stipulation or at trial. Def. Resp. to Mot. for Costs and Interest at ¶ 6. The one sentence devoted to this “argument” reads in its entirety: “[This Court previously] dealt with a request for prejudgment interest where a verdict was larger than a demand . . . The Court [] found that the failure to raise the issue by requesting either in the pretrial stipulation or trial was fatal to the request. However, the more important part of the ruling is that the demand itself must be sufficient to raise the issues that 6 Del. C. § 2301(d) implicates . . . . ” Id. Defendant has not fairly raised this issue as a potential argument in this motion for costs and prejudgment interest because Defendant has failed to cite any authority on this point and has not otherwise sufficiently argued this point. Thus, this Court need not reach the merits of this issue. 64 6 Del. C. § 2301(d). 65 Id.

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ii. Plaintiff is Entitled to a Sum of $1,100 for the Deposition Testimony of Dr. Sternberg

Finally, this Court must address the appropriate amount to award

Plaintiff, as the prevailing party, for the cost of the deposition testimony of

Dr. Sternberg.

10 Del. C. § 5101 provides in pertinent part:

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.

Similarly, Superior Court Civil Rule 54(d) provides that “. . . costs

shall be allowed as of course to the prevailing party . . . unless the Court

otherwise directs.” “Determining when costs are awarded and when they are

not is, in our judgment, a matter of judicial discretion under the statute.”66

Additionally, 10 Del. C. § 8906 provides:

The fees for witnesses testifying as experts or in the capacity of professionals in cases in the Superior Court, the Court of Common Pleas and the Court of Chancery, within this State, shall be fixed by the court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case and shall be collected and paid as other witness fees are now collected and paid

In Payne v. Home Depot, this Court found that “$2,700 . . . is very

near the upper range of reasonable medical expert witness fees for a half-day

66 Donovan v. Delaware Water & Air Res. Comm’n., 358 A.2d 717, 722-23 (Del. 1976).

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time period.”67 Similarly, McKinley v. Schaedel stated that “the applicable

range of reasonable half-day testimony fee would be $1,972.10 to

$2,730.60.”68

Here, Dr. Sternberg’s deposition was taken in his own office and

lasted approximately thirty-six minutes. No travel time or other expenses

were involved. Based on the relatively minimal amount of time Dr.

Sternberg’s testimony lasted and the ranges of expert fees discussed in both

Payne and McKinley, this Court has determined that Defendant’s range of

“reasonable fees” is more appropriate.69 Accordingly, this Court awards

Plaintiff $1,100 for the deposition testimony of Dr. Sternberg.

V. CONCLUSION

For all the reasons stated, Defendant’s motion for a new trial is

DENIED. Plaintiff Drayton’s motion for costs and prejudgment interest is

GRANTED. Plaintiff may recover $13,739.92 in prejudgment interest,

67 Payne v. Home Depot, 2009 WL 659073, at * 7 (Del. Super). 68 McKinley v. Schaedel, 2009 WL 4653782, at * 1 (Del. Super.). 69 Plaintiff attempts to argue that Defendant’s request of $2,500 for the deposition testimony of Dr. Alan Fink, Defendant’s expert witness, should be a significant factor in considering this Court’s award to Plaintiff’s expert. See Pls. Reply to Mot. for Costs and Interest at ¶ 1. This argument is without merit because Plaintiff has not opposed Defendant’s motion for costs and interest.

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$370.00 for videotaping fees associated with the deposition of Dr. Sternberg,

and $688.00 in Court costs.70

_______________________ Richard R. Cooch

oc: Prothonotary

70 This Court lastly observes that if Plaintiff’s counsel had (1) asked Dr. Sternberg at his deposition if the medical bills were “reasonable and necessary” and (2) stated in the demand letter that the offer was made pursuant to 6 Del. C. § 2301(d) and that it was valid for thirty days, most of this post-trial litigation could have been avoided.