Gavern v. Hanley, No. Cv 91 028 30 40 (Aug. 12, 1994)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: COSTS The plaintiff Nancy Gavern recovered damages against the defendants Christina Hanley and Joseph Rosa when the jury returned a verdict of $225,000 in her favor apportioning CT Page 8099 liability of 65% against Hanley and 35% against Rosa. Ms. Gavern's husband and co-plaintiff Ronald Gavern did not prevail on the count in the complaint claiming damages for his derivative injuries of loss of consortium. Both defendants now claim costs should be awarded them as prevailing parties in this derivative claim. Additionally they object to certain costs claimed by the plaintiff mainly those for the attendance and testimony in court of two physicians who offered expert testimony, on the ground that these physicians were "treating" physicians, rather than retained experts.

The court finds that substantially all of the evidence produced by the plaintiffs at trial and developed in pretrial proceedings related to the injuries suffered by Nancy Gavern, as did the evidence of the defendants. Ronald Gavern's direct case for loss of consortium was relevant to and admissible on the issue of Nancy Gavern's injuries, had there been no loss of consortium claim. The defendants are not entitled to costs in this case where the jury found all issues relating to liability against the defendants.

The fact that two of the several expert witnesses summoned to testify for plaintiff had treated her condition does not disqualify them as recipients of costs under Connecticut General Statutes § 52-260(f); nor does the fact that they were not the subject of Connecticut Practice Book § 220D disclosure, an issue not previously raised by the defendants.

Plaintiff Nancy Gavern shall recover costs of $7,642.50 and the claim of the defendants for disallowed.

PATTY JENKINS PITTMAN, JUDGE