This appeal is taken by the unsuccessful plaintiff in a medical malpractice case.
The errors complained of are threefold:
I.
The plaintiff contends that prejudicial error occurred when the defendants' attorney was permitted to refer to the contents of a medical text book in the direct examination of an expert medical witness testifying on behalf of the defendants. The reference was to the fact that "two schools of thought" existed on the propriety of administering the drug known as regitine pre-operatively to a pheochromocytoma (tumor on the adrenal gland) patient. Objection to the line of questioning was made by the plaintiff's attorney on the ground that the witness could not state that he recognized the text writers as authoritative, although he did recognize that the studies discussed in the text were done at an authoritative hospital. That objection was overruled. The ground of inadmissibility now asserted before us, viz., that text books may be used only in cross-examination, was not presented to the Trial Judge.
We hold that the evidentiary ruling of the Trial Judge on the ground presented did not constitute reversible error. Moreover, the ground of objection now urged before us for the first time may not be considered because not made at trial. 1 Wigmore on Evidence (3d Ed.) pp. 339-340; Food Fair Stores, New Castle, Inc. v. Howard, Del.Supr., 212 A.2d 405 (1965). The ruling of the Trial Judge may not be classified as "basic and fundamental error", Wiggins v. State, Del.Supr., 210 A.2d 314 (1965); or as "inconsistent with substantial justice", Superior Court Civil Rule 61. Accordingly, we will not disturb the verdict and judgment on a ground not presented to the Trial Judge.
II.
The plaintiff contends that the Trial Judge abused his discretion in taxing upon him as costs the expense of the special jury demanded by the defendants in this case — an amount exceeding $1,000. We agree.
We are of the opinion that this case does not meet the test of Nance for imposition of the expense of the special jury as costs upon the plaintiff. In a sense, every case involving medical testimony is a "complex" one to the laymen on the jury. It may not be permitted to follow that the expense of a special jury may be taxed as costs in every case involving medical testimony.
It does not appear to us that the trial of this case was of sufficient complexity to justify the action of the Trial Judge in assessing the costs of the jury against the plaintiff. We do not have the benefit of a statement by the Trial Judge as to any special reason he may have had for so doing. We must hold that he abused his discretion in this regard.
The Order assessing the expense of the jury as costs, to be paid by the plaintiff, will be reversed.
III.
The plaintiff complains that the Trial Court taxed as costs against him witness fees, in the amount of $500. each, for two medical experts who testified on behalf of the defendants. One witness travelled to the Superior Court in Wilmington from the Philadelphia area; the other practices in the Wilmington area. The first submitted a statement for 21 hours at $30. per hour, a total of $630.; the other a bill for 30 hours at $25. per hour, a total of $750.
Expert witness fees may be taxed as costs to the unsuccessful party by virtue of 10 Del.C. § 8906.
The present situation is controlled by that rule. It is clear that the Trial Court's allowances of witness fees in the instant case included time spent in the court room listening to plaintiff's witnesses and consulting with counsel. To that extent, the allowances
We hold, therefore, that the taxing of $500. for each witness as costs to the plaintiff may not stand. The defendants must take the expense of orienting and consulting with their expert witnesses; and if the defendants' expert witnesses must relate to the testimony of the plaintiff's expert witnesses, fairness requires that this be done at the defendants' expense.
The cause will be remanded for reassessment of witness fees in accordance herewith.
Comment
User Comments