On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1310-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Plaintiff Bela Mukhoti appeals from a May 1, 2009 final order of the Law Division, awarding defendant Mercedes-Benz USA, L.L.C. taxed costs in the amount of $2,613.55. We affirm.
By way of background, plaintiff sued defendant in product liability, claiming she was injured when her vehicle, designed and manufactured by defendant, rolled backwards down her driveway after she attempted to remove the ignition key and bumped against the gearshift, unintentionally causing it to shift from park to reverse. She claimed the vehicle was defective because the gearshift's design permitted her awkward attempt to remove the ignition key to cause a shifting of the transmission from park to reverse. In support of this claim, and in opposition to defendant's summary judgment motion, plaintiff proffered the report and deposition testimony of her expert, who opined that because the design of the vehicle's gearshift permitted a shift of the transmission from park to reverse in a single movement instead of two separate "movements," it did not preclude accidental and unexpected shifting of the vehicle's gears.
The motion judge granted summary judgment dismissal of plaintiff's case and we affirmed because plaintiff's expert provided only a net opinion in asserting a link between the alleged defect and plaintiff's injuries. Mukhoti v. Mercedes-Benz of Cherry Hill, A-1825-07T2 (App. Div. Oct. 15, 2008) (slip op. at 2). We found the expert's opinion inadmissible for several reasons. First, although the expert opined that plaintiff had her foot on the brake with sufficient force to deactivate the vehicle's brake transmission shift interlock (BTSI) - a technology which does not permit the movement of the gearshift unless the brake pedal is depressed - the expert also concluded that plaintiff had not exerted sufficient force to engage the brake. Id. at 13. However,
Plaintiff never testified that, after she depressed the brake pedal, thus deactivating the BTSI, she kept her foot on the brake pedal but without sufficient force to engage the brakes. And an inference that she may have done so is not reasonable in light of the expert's failure to demonstrate or recreate whether the vehicle could roll backward while in reverse when the driver's foot is on the brake pedal. The only reasonable inference to be drawn from the circumstances is that plaintiff depressed the brake pedal and bumped into the gearshift, which caused a shift in gears, but then she took her foot off the brake pedal, causing the vehicle to roll, and never re-applied the brakes once the vehicle backed down the driveway. Because that is the only reasonable inference to be drawn from the record, no rational factfinder could conclude that the alleged defect in the gearshift was the cause of plaintiff's injuries. [Id. at 13-14.]
Second, in stating his opinion, plaintiff's expert did not testify, within a reasonable degree of probability, that the brake pedal could be contacted sufficiently to deactivate the BTSI yet without engaging the brakes; he only said it was "possible," and never explained how it was possible. Id. at 14-15. Third, the expert did not provide an explanation, within a reasonable degree of certainty, that plaintiff's injuries were caused by the design defect he alleged. Id. at 15.
Following the grant of summary judgment, defendant moved for specific taxed costs. After several hearings to determine the exact calculation, the motion judge, who had not decided the summary judgment motion, awarded taxed costs to defendant of $2,613.55, consisting of a statutory fee of $40; filing fee of $220; process server fee of $204; and a transcript fee for plaintiff's and plaintiff's expert's depositions of $2,149.55. In granting such relief, the judge reasoned:
[Deposition] [t]ranscripts, now there is precedent for awarding the costs of preparing transcripts. And I would cite Children's Institut[e] v. Verona Township Board of Adjustment, 209 N.J. Super. 350, [(App. Div. 1996)]. And Bung's Bar & Grill[, Inc.] v. Township [Council of Florence, [206 N.J. Super. 432 (Law Div. 1985)].
And Bung, which has been cited here today in the argument . . . [t]alked about eliminating the need for trial, additional expert testimony. And there's certainly something to be said for that argument.
In Woolwich v. Dyer (phonetic), the Appellate Division also included the expense paid for an administrative hearing transcript. I could cite a number of cases, but I don't think there's any question that the Court has the discretion to award deposition transcript fees.
On appeal, plaintiff argues the court abused its discretion in assessing defendant's taxed costs and transcript fees ...