IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



JUAN ALFREDO HUGHES et. al.

Plaintiffs



Ve



DOCTOR ESTELLA AGARRO, et al

Defendants



STEDMANN HODGE, ESQUIRE

P, O. Box 9910



St. Thomas, Virgin Islands 00801



(Attorney for Plaintiffs)



PATRICIA D. STEELE, ESQUIRE

Law Offices of R. Eric Moore

P. O. Box 3086



Christiansted, St. Croix, V.I.

(Attorney for Defendants)



CIVIL NO.



MEMORANDUM OPINION



&



2



FEUERZEIG, J



(May 37, 1982)



384/1982



The court previously issued a memorandum opinion and



order outlining in some detail why it considered the defen-



dants prevailing parties and, therefore, entitled to costs



and attorneys fees within the meaning of 5 V.I.C. §541



(1967). Consequently, it now must consider the affidavit of



counsel for the defendants and the plaintiffs' opposition to



the requested award of costs and attorney's fees.



At the root of this court's award is the fact that the



evidence in this medical malpractice action showed that the



minor was treated in compliance with applicable medical

standards. However, as previously stated, if the defendant

Dr. Estella Agarro was guilty of wrong doing, it was no more

than rudeness in hex conversation with plaintiff's mother,

Betty Hughes. The court reiterates that while rudeness is

unacceptable conduct, it is not the type of conduct that

provided a basis for recovery in this action. Given the

facts as presented to the jury, which rendered a verdict of

no liability and no damages, the defendants clearly are

prevailing parties and as such should be partially

indemnified in accordance with 5 V.I.C. §541.

costs



Having determined that the defendants are the prevail-

ing parties and are entitled to costs and attorneys fees,

the court turns to the affidavit of defendants’ counsel.

In addition to attorney's fees, defendants claim costs in

the amount of $1,363.70. The court's granting and denial of

these costs will be done with little discussion because the

court writes on anything but a clean slate. Specifically,



Kriegel v. St. Thomas Beach Resorts, Inc., 18 V.I. 365



(D.V.I. 1981), dictates the results of most of the claimed



costs of the defendants. Taking the claimed costs seriatim:

1. Long distance telephone calls in the amount of

$6.80. This will be disallowed as such costs customarily



have been considered as usual and normal expenses of running

a law office and are not to be included in an award of



costs. See, e.g. Smith v. Sparky's, Inc., Civil No. 78-232



(D.V.I., Div. St. Thomas and St. John, March 2, 1981), and



Tyler v. American Airlines Inc., Civil No. 76/369 (D.V.I.,



Div. St. Thomas and St. John, June 21, 1979).



2. Xerox costs of $271.40. Such an expenditure is

not to be included as costs where the necessity for them has

not been shown and none of the claimed copies was introduced



in evidence. Kriegel v. St. Thomas Beach Resorts, Inc., 18



V.I. at 369. Because a judgment of liability would have

required an insurance company to indemnify some of the

defendants, the defendants assert that they should be

reimbursed for counsel having to keep its clients abreast of

developments at every stage of the case. The court does noc

agree. While it is sound practice to keep a client advised,

it clearly is nothing more than a part of the normal cost of

running any law office. As such it is not to be included in

any award of costs. This is particularly so where there has

been no showing of a need for such activity to ensure



proper presentation of the case. Accordingly this item will



be disallowed.



3. Deposition transcript costs of $440.50.



Where depositions are taken but not used at trial,

the cost of the transcript of such depositions is not

recoverable as a matter of right. ... The cost of

the transcript of a deposition though not used at trial

may be taxed as cost in the discretion of the court if

the deposition was reasonably necessary for the proper

presentation of the case and was not merely investiga~

tive in nature.

Id. at 368. In this instance, the depositions of Dr.



William B. Woods and Juan and Betty Hughes were not used,

and there has been no showing that they were anything but

investigatory. Accordingly, the costs of $115 and $117

respectively for those depositions will be disallowed.



The deposition of Dr. Nestor Rivera Perez was utilized

by the plaintiffs as part of their case in chief, and the

deposition of Dr. Cyprian A. Gardine was utilized by the

defendants in presenting their defense. Consequently, the

court believes the cost of each transcript is appropriately

allowable in accordance with Kriegel. Costs of $53.00 and

$155.50 respectively, therefore, will be allowed.



4. Expert witness fees tor depositions of $175.

Generally, experts are entitled to the regular statutory

witness fee only, and costs incurred in excess of that

amount are not taxable. However, upon prior application and

good cause shown additional charges may be allowed. Id. at

368. Since the deposition of Dr. Woods was not used, the

court believes the rationale of Kriegel requires a disallow-

ance of a witness fee in excess of the statutory rate.

Also, in the absence of an application before trial for

costs in excess of the statutory rates, even though the

deposition of Dr. Gardine was used at trial, the $75.00 that

is claimed must be reduced to the statutory fee of $30.00.

Consequently, costs of $30.00 for each witness will be



awarded for a total of $60.00 in witness fees.

5. Defendants claim reimbursement for the cost of

airfare and expenses for the taking of three depositions,

two in St. Thomas at a cost of $68.00 each and one in Puerto

Rico in the amount $152. They also claim reimbursement for

airfare for conferences with witnesses in the amount of

$68.00 and airfare for trial in St. Thomas in the amount of

$114.



"It now seems to be generally assumed that expenses

incurred in travelling to take depositions, as well as

charges for meals and lodging are properly taxable costs.

This does not appear to be the generally accepted view, for

absent special circumstances, no allowance is,made for such

expenditures." Kriegel, 18 V.I. at 368. As pointed out

earlier, the deposition of Dr. Rivera Perez was utilized at

trial. Therefore, there clearly was a necessity for

defense. counsel to. travel to Puerto Rico for his deposition

and the claimed costs of $168.00 will be allowed. However,

no special circumstances for any of the other claimed travel

costs have been shown. Therefore, the cost of airfare and

expenses incurred for the other depositions must be disal-

lowed.



| The claimed travel expenses for conferences with

witnesses and for trial also will be disallowed. "{I]fa

litigant elects to choose counsel residing in a division of

the court other than that in which the case is filed, this

is an expense that the litigant should properly bear and not



attempt to pass on to the opposing side." Heyl & Patterson

International, Inc. v. F.D. Rich Housing of the Virgin



Islands, Inc., Civil No. 75-785 (D.V.I., Div. St.Thomas and



St. John, October 24, 1980), and Creque v. Sofarelli Associ-



ates, Inc., Civil No. 471-1982 (Terr. Ct., Div. St. Croix,



December 2, 1983). 2/



As a result, the court concludes defendants are enti-

tled to reimbursement of costs in the amount of $436.00,

deposition costs of $53.00 and $155.00, travel expenses for

the taking of Dr. Rivera Perez’ deposition of $168.00, and



statutory witness fees of $60.00.



i/ In denying the requested travel reimbursements, this

court is not unmindful of the most recent statements by the

Third Circuit Court of Appeals in Danny Kresky Enterprises

Corp. v. Magid, 716 F.2d 20€, 217-218 (3d Cir. 1983), in

which the court discussed the appropriateness of awarding

costs and attorney's fees as a result of the plaintiff

having chosen an attorney from Philadelphia when the suit

was filed in Pittsburgh. The trial court disallowed the

claimed travel time and costs incurred in connection with

that travel. It said the plaintiff was fully aware that the

litigation would take place in Pittsburgh yet chose

Philadelphia counsel “knowing that capable attorneys were

present in Pittsburg who could have handled this case." In

overruling the trial court, the Third Circuit stated:



Even if it were ever appropriate to deem

unreasonable :the travel time from the city for the

day of a party's chosen counsel to the place of

trial on such a basis, this is not an appropriate

case to fault plaintiff for selecting a counsel

from outside the city of trial. Plaintiff's

counsel was from the same state, not from across

the country, and under Pennsylvania rules is free

to practice throughout the state. The selection

of Kramer as plaintiff's counsel to try this case

was undoubtedly and reasonably influenced by

Kramer's involvement in other antitrust litigation

pending in Philadelphia against Electric Factory.

Kramer was therefore thoroughly familiar with many

Attorneys Fees



Defendants request attorney's fees in the amount of

$8,145 representing 90.50 hours at a rate of $90 per hour.

Clearly, 5 V.I.C. §541 authorizes this court to exercise

its discretion and grant defendants' request and such an

award will not be subject to challenge absent a clear abuse



of that discretion. Trainberg v. Trainberg, 456 F.2d 173



(3d Cir. 1972).



The factors for the court to consider in exercising



i1/ continued



important facts about the industry.. Significant-~

ly, defendant Electric Factory also chose

Philadelphia counsel for this case. Therefore,

the selection of both counsel from the same city

reduced the total costs and the number of hours

which were expended in this litigation.



This language might suggest that Heyl & Patterson and

Creque are of questionable validity. Assuming that to be

true, the facts at issue are such as to cause this court to

believe that the rationale of Heyl & Patterson and Creque

still applies. First, as the Third Circuit pointed out in

Kresky one of the defendants in that case also chose counsel

from Philadelphia which resulted in a reduction in total

costs and the number of hours that were needed. That cannot

be said of this litigation. Secondly, the Third Circuit

emphasized plaintiff counsel's expertise in the antitrust

‘field as well as counsel's familiarity with other antitrust

litigation in Philadelphia against one of the defendants.

Those considerations also are lacking here. There has been

no showing here that defense counsel has some unique

expertise in the medical malpractice area to the exclusion

of counsel on the island of St. Thomas. Moreover, there has

been no showing that the facts in this cases were such as to

require or merit selection of a St. Croix lawyer or law

firm to the exclusion of a St. Thomas lawyer or law firm.

Thus, this court believes it still must be bound by: the

holding of the District Court of the Virgin Islands as

expressed in Heyl & Patterson. .

its discretion have been articulated by the Third Circuit



Court of Appeals and the District Court of the Virgin



Islands on numerous occasions. E.g. Lindy Bros. Builders,



Inc. of Philadelphia v. American R. & R. San Corp. 487 F.2d



161 (3rd Cir. 1973), and Estien v. Christian, 11 V.1I. 464,



507 F.2d 61 (3rd Cir. 1975). Lindy, Estien and their



progeny express the philosophy that §541 is intended to

provide a prevailing party idemnification "for a fair and

reasonable portion of his or her attorney's fees incurred in

the prosecution or defense of the action and not for the

whole amount charged by the attorney ... " Lucerne



Investment Co. v. Estate Belvedere, Inc., 411 F.2d 1205,



1207 (3rd Cir. 1969).



However, before the value of an attorney's services can

be determined, the court is required to ascertain just what

services were rendered. Toward this end the court has to

look to the hours spent by the attorneys, i.e. how many

hours were spent and in what manner by which attorney.



While the Third Circuit has counselled that "[i]t is not



necessary to know the exact number of minutes spent nor the



precise activity to which each hour was devoted...

without some fairly definite information as to the hours

devoted to various general activities, e.g., pretrial

discovery, settlement negotiations and the hours spent by

various classes of attorneys, . . . the court cannot know

the nature of the services for which compensation is



sought." Liridy 486 F.2d at 167.

ot



In this instance, contrary to defendants assertions,

plaintiffs are correct in contending that the affidavit

submitted by counsel for the defendants falls short of the

Lindy criteria. For example, counsel claims reimbursement

for 51 hours under the heading "trial preparation." Howev-

er, she states no more than "File and deposition review and

general preparation for trial; Witness interviews and

attendance at trial on 12/13-14/83; Preparation of voir dire

questions; jury instructions; research and preparation of

Motion in Limine, with accompanying Memorandum of Law;

preparation and marking of exhibits." This is not "some

fairly definite information as to the hours devoted to

various general activities." To the contrary, this narra-

tive is far too general. Consequently, the court is not able

to undertake with any degree of certainty the next step

required by Lindy,.which is the value of those services.



Obviously, the value of an attorney's time is reflected

by his or her normal billing rate, which in this instance is

claimed to be $30 per hour. Lindy, however, cautions that

a court not fix attorney's fees merely by multiplying the

hourly rate for each attorney times the number of hours

worked on the case. More importantly, the United States

Supreme Court in awarding attorney's fees under 42 U.S.C.



§1988 has cautioned in language equally applicable here



that, "The initial estimate of a reasonable attorney's fee



is calculated by multiplying the number of hours reasonably

expended on the litigation times a reasonable



hourly rate." Blum v. Stenson, 52 .U.S.L.W. 4377 (March 21,



1984). (Emphasis added). In other words, the court must

evaluate the quality of an attorney's work. To do that it

has to consider the complexity and novelty of the issues

presented, the quality of work that the judge has been able

to observe and the amount of recovery obtained. Therefore,

the court must know with some degree of specificity exactly

what an attorney did before it can determine whether those

labors necessarily benefited the client.



Jury selection in this case was accomplished in 40

minutes the morning of December 12. Trial was conducted in

7 3/4 hours on December 13, and the jury delivered its

verdict the next day. It was not a difficuit case. In

fact, it was a very straight forward medical malpractice

case that did not, require a great deal of preparation or

trial skill on the part of the defendants' counsel. The

court makes that statement primarily because the defendants

had at their disposal, almost at the outset of this case,

the medical reports of Dr. William B. Woods. He treated the

minor plaintiff within two hours of the alleged medical

malpractice by the defendant Dr. Estella Agarro and ex-

pressed the belief that there was no deviation from the

standard of medical care regularly practiced in this commu-

nity. In fact, as discovery in this case took place,



defendants became confidently aware that plaintiffs had an

extremely difficult burden of establishing negligence or

malpractice on the part of the defendants. As a result, the

court believes that much of the time devoted to this case

was unnecessary. |



While the defendants could not have achieved better

results, counsel's performance or skill does not warrant any

increase in the value of the time spent. In addition,

although it now appears that in some instances the

prevailing rate being charged by attorneys in this community



is $90 per hour, Trailer Marine Transportation Corp. v.



Charley's Trucking, Inc., Civ. No. 1228/1981 (Terr. Ct.,



Div. St. Thomas & St. John, March 15, 1984), the court

believes the $75.00 being assessed by some judges is more

appropriate for the services rendered in this case. See



Alexander v. Montoute, Civil No. 343/82 (Terr. Ct., Div. St.



Croix, December 8,..1982). The total trial time in this

matter being slightly more than one full day, the court

believes defendants are entitled to compensation for one day

of trial at the customary rate of $650 per diem for trial.



Goldstein v. John Hambers Watersports Center, Inc., Civil



No. 78-286 (D. V.I., Div. St.Thomas and St. John, Feb. 26,

1981).



Given the inability of the court to appropriately

assess and evaluate the work listed in the affidavit of

defendants' counsel, the court is going to be guided by the



comments of Chief Judge Miles W. Lord, who was quoted

12.



recently in Danny Kresky_ Enterprises Corp. v. Magid, 716



F.2d at 218: "It has been this court's experience that a

good rule of thumb to apply in litigation is that three days

of preparation are necessary for every day in court."

Applying this rule of three days of preparation per day of

trial, the appropriate amount of preparation would have been

three days or 24 hours. The court will add to that three

hours for travel to and from Puerto Rico for the deposition

of Dr. Nestor Rivera Perez for a total of 27 hours. When



multiplied by $75.00 per hour that constitutes $2,025.00.



Cf Smith v. Sparky's Inc., Civil No. 78-232 (D.V.I., Div.



St. Thomas and St. John, March 2, 1981). Accordingly,

defendants will be awarded $2,025.00 in attorneys fees and



3436.00 in costs.



DATED: Vi ; Ga

Hay 4G S87 “HENRY T_SenUERZETC

JUDGE



ATTEST:



VIOLA E. SMITH

Administrator/Clerk of the Court