Rash v. Moczulski
N13C-06-068 VLM
| Del. Super. Ct. | Oct 16, 2017Background
- Plaintiffs sued; jury found Defendants caused injury but awarded $0 in damages. Plaintiffs moved for a new trial; court denied but awarded additur of $10,000. Appeals and cross-appeals affirmed the Superior Court decision.
- Defendants had served a Rule 68 Offer of Judgment for $50,002 before trial; Plaintiffs did not accept it.
- Defendants moved to recover post-offer costs under Rule 68 after obtaining a final judgment (the additur amount was less favorable than the offer).
- Major contested cost items: trial transcript fees, costs on appeal, deposition transcript costs for Plaintiffs’ experts, and substantial fees billed by Defendants’ expert witnesses incurred after the offer.
- The court treated Rule 68 as requiring an award of post-offer costs when the final judgment is less favorable than the offer, but held that the amount recoverable is governed by what qualifies as "costs" under Rule 54 and 10 Del. C. § 8906 (reasonableness constraint).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 68 requires awarding all post-offer litigation expenses | Rule only applicable to specified taxable costs; recoverable costs must comply with Rule 54 and § 8906 | Rule 68 mandates award of all post-offer costs incurred by defendant (no reasonableness limit) | Rule 68 triggers cost-shifting when final judgment is less favorable than the offer, but recoverable amounts are limited to costs as defined under Rule 54 and § 8906 (reasonableness applies) |
| Recoverability of trial transcript fees incurred for opposing a new-trial motion | N/A (Plaintiffs conceded these should be awarded) | Seek $783 for trial transcript preparation after offer | Awarded $783 for trial transcript expenses |
| Costs on appeal when both parties appeal and judgment is affirmed | Appellant (Plaintiffs) should bear appeal costs | Defendants sought appellate costs | Court held Supreme Court Rule 20 governs; because both were appellants and judgment affirmed, each bears own appellate costs (no award) |
| Recoverability and amount of expert witness fees incurred after the offer | Challenge full recovery; argue recoverable only as allowed by Rule 54 and § 8906 and must be reasonable and itemized | Seek full recovery of post-offer expert fees (total billed ~$13,400) | Limited recovery: disallowed Plaintiffs’ expert deposition transcript ($341.15); allowed limited expert fees for Defendants’ experts based on reasonableness and precedent — total expert award $6,250; combined with other items, total awarded to Defendants $7,033 |
Key Cases Cited
- Marek v. Chesny, 473 U.S. 1 (U.S. 1985) (Rule 68 cost-shifting depends on the substantive definition of recoverable "costs")
- North Carolina Shellfish Growers Ass'n v. Holly Ridge Assocs., LLC, 278 F. Supp. 2d 654 (E.D.N.C. 2003) (illustrative discussion of Rule 68's limits and policy concerns)