June 11, 2010
BELA MUKHOTI, PLAINTIFF-APPELLANT,
MERCEDES-BENZ USA, L.L.C., DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2010
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 against plaintiff. We disagree.*fn1
The longstanding policy of this State is that litigants bear their own expenses for attorneys' fees and costs, except where specifically authorized by statute, rule or agreement. Sunset Beach Amusement Corp. v. Belk, 33 N.J. 162, 170 (App. Div. 1960); Velli v. Rutgers Casualty Ins. Co., 257 N.J. Super. 308, 309 (App. Div.), certif. denied, 130 N.J. 597 (1992). Notwithstanding, costs may be allowed in virtually any proceeding at the discretion of the court. Hirsch v. Tushill, Ltd., 110 N.J. 644, 646 (1988). Thus, N.J.S.A. 2A:15-59 provides:
Except as otherwise provided by law, costs may be allowed or disallowed in the discretion of the court to any party in any action, motion, appeal or proceeding, whether or not he be successful therein; and where allowed, they may be taxed according to law. [(Emphasis added).]
The decision to award costs being discretionary with the trial court, it is reviewable for an abuse thereof. Children's Institute, supra, 290 N.J. Super. at 358.
In addition to statutory authority, court rules allow for recovery of costs, including transcription fees:
(a) Parties Entitled. Unless otherwise provided by law, these rules or court order, costs shall be as of course to the prevailing party. The action of the clerk in taxing costs is reviewable by the court on motion.
(c) Proof of Costs. A party entitled to taxed costs shall file with the clerk of the court an affidavit stating that the disbursements taxable by law and therein set forth have been necessarily incurred and are reasonable in amount, and if incurred for the attendance of witnesses, shall state the number of days of actual attendance and the distance traveled, if mileage is charged. Such costs may include fees paid to a private person serving process pursuant to R. 4:4-3, but not in an amount exceeding allowable sheriff's fees for that service.
To be sure, as a matter of policy, deposition costs are not generally recoverable as taxed costs. Buccinna v. Micheletti, 311 N.J. Super. 557, 564 (App. Div. 1998); see also Hirsch, supra, 110 N.J. at 649; Finch, Pruyn & Co., Inc. v. Martinelli, 108 N.J. Super. 156, 159-60 (Ch. Div. 1969). The Comment to Rule 4:42-8 restates the holding of Finch, supra, that: while such a routine allowance would violate the general principle that each party must ordinarily bear his own expenses incurred in the litigation, nevertheless where fraud or other reprehensible conduct on the part of the losing party is involved or there are other extraordinary circumstances in the cause of the action or conduct of the litigation, deposition costs may be properly allowable by court order. [Pressler, Current N.J. Court Rules, comment 3 on R. 4:42-8 (2010).]
Thus, deposition costs are awardable in the court's sound discretion, albeit not routinely. Finch, Pruyn & Co, Inc., supra, 108 N.J. Super. at 159-160; see also Buccinna, supra, 311 N.J. Super. at 564-65; Fargas v. Scott, 251 N.J. Super. 169, 200-01 (Law Div. 1991).
For instance, taxation of depositions costs against a losing party was permitted in a successful suit to set aside fraudulent conveyances, Finch, Pruyn & Co., Inc., supra, 108 N.J. Super. at 160, and in connection with a zoning challenge brought by an interested citizen, Huber v. Zoning Bd. of Adj. Howell Tp., 124 N.J. Super. 26, 28-29 (Law Div. 1973). More appropo, the prevailing party in an action challenging local improvement assessments was held entitled to recover reasonable costs of three expert witnesses and costs of transcripts.
Bung's Bar & Grill, Inc., supra, 206 N.J. Super. at 484-86. There, "the use of expert witnesses was absolutely necessary[,]" id. at 485, and the court, quoting In re Caruso, 18 N.J. 26, 39-40 (1955), held that ". . . where expert opinion evidence is essential to be [sic] resolution of the issue, a reasonable allowance for the service is includable in the taxed costs."
Id. at 481. As for allowing the cost of transcripts, the court reasoned:
The transcripts were the record in this case. The fact that they were available eliminated the need for a trial, additional expert testimony and considerable expense. Elementary fairness should permit recovery. [Bung's Bar & Grill, Inc., supra, 206 N.J. Super. at 486.]
Similarly, in Children's Inst., supra, we upheld the award of transcript costs to a prevailing plaintiff in its action in lieu of prerogative writs. 290 N.J. Super. at 358. There, we found that the production of the transcripts of the hearing before the Board of Adjustment was a necessary cost incurred by the applicant in order to properly perfect its action in the Law Division. Ibid.
Here, the deposition transcripts of plaintiff and her expert clearly exposed critical deficiencies in plaintiff's case that were instrumental in disposing of the matter in a summary manner, thus avoiding the time and expense of a trial and other incidental proceedings. We do not mean to suggest, however, that such costs should be regularly allowed on summary dispositions, but only that, under these circumstances, where the proof - both expert and lay - is so defective and wanting as to compel the result reached, then the award of transcript costs is not an abuse of discretion.
We discern this to be the rationale for the court's determination, although not explicitly stated, from its citation to statutory, rule, and decisional authority as well as its reference to the need for such expert testimony to efficiently resolve the matter short of trial. We would, however, have preferred a more detailed explanation and reasoning for its exercise of discretion, especially because the relief granted is generally limited to extraordinary circumstances. Be that as it may, appeals are taken from orders or judgments, not the reasons for them. Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993). The record here contains ample reasons supporting the court's exercise of its sound discretion.