Opinion
Case No. 02-2715 STA/cgc
02-25-2014
K.C., a minor by Natural Mother and Next Friend, Kathleen Calaway, Plaintiff, v. Jodi Schucker, M.D., Defendant.
ORDER TAXING COSTS
PROCEDURAL HISTORY
The record indicates that on September 9, 2013 Judgment was entered in favor of the Defendant in accordance with the jury verdict rendered on September 6, 2013 and that on October 2, 2013 Defendant filed a Bill of Costs, including itemized documentation for the requested costs, seeking reimbursement for expenses in the total amount of $30,007.67. Plaintiff filed a Motion for New Trial on October 4, 2013, which was denied by the Court on November 8, 2013. Plaintiff filed Objections to Defendant's Bill of Costs on February 10, 2014 and Defendant filed a Response to Plaintiff's Objections on February 13, 2014.
Written notice was issued pursuant to Local Rule 54.1 that a hearing would be held by the Clerk of Court on February 20, 2014 at 11:00 A.M. at which the parties could appear and/or submit citations of law relevant to the issue of taxation of costs in this matter. A cost assessment hearing was held as scheduled. Carroll C. Johnson, III, Esq. appeared by telephone for the Plaintiff and Deborah Whitt, Esq. and Michael Jason Martin, Esq. appeared in person for the Defendant.
STANDARD OF REVIEW
Fed. R. Civ. P. 54(d) creates a presumption that the cost of litigation will be awarded to the prevailing party unless the Court finds otherwise and 28 U.S.C. § 1920 sets forth the scope of costs that are properly recoverable. Costs will be awarded to the prevailing party unless the non-prevailing party can present circumstances, conditions or factors to be considered that are sufficient to override or mitigate the extent of the award of costs. In the latter instance, it is the losing party who carries the burden of negating the presumption that the winning party ought to recover costs.
The evaluation of the appropriate taxation of costs is therefore more than the mere mechanical application of the above rule and statute and ought to address, at a minimum, the following the basic issues: (a) Whether the party submitting the Bill of Costs was, in fact, the prevailing party in the case; (b) Whether and to what extent the costs claimed by the prevailing party are proper under 28 U.S.C. § 1920; (c) Whether these costs are reasonable in amount and were reasonably incurred in prosecuting or defending the related action; (d) Whether the claimed costs were actually incurred; (e) Whether the claimed costs were adequately documented; and (f) Whether there are considerations, factors or circumstances that otherwise overcome the presumption to award costs to the prevailing party.
As to the issues presented in subsection (f) above, in order to overcome the presumption in favor of awarding costs to the prevailing party the following factors may be considered: (1) Whether the losing party prosecuted his/her case in good faith and with propriety; (2) Whether the case itself was close and difficult; (3) Whether the prevailing party had unnecessarily prolonged trial or injected unmeritorious issues; (4) Whether the taxable costs by the prevailing party are unreasonably large; (5) Whether the prevailing party's recovery is so insignificant that the judgment amounts to a victory to the other party; and (6) Whether the losing party is indigent.
It would also be useful to point out considerations that are often presented but will not be given much, if any, weight in evaluating whether to award costs. These considerations would include the following: (a) That the losing party's case raised important public policy issues that needed to be addressed and that there would be a chilling effect on future issues being raised if costs were imposed; (b) That because the losing party prosecuted or defended their side of the matter in good faith they ought to be excused from paying costs; (c) That the losing party's financial status should exempt them from paying costs, either because they are indigent or because they are disproportionately less wealthy than the prevailing party; and (d) That costs should not be awarded to the prevailing party because their recovery was only nominal, because they only prevailed on a portion of their claims, or because the nature of their relief was non-monetary, such as the issuance of an injunction. These arguments will not significantly influence the awarding of costs, though they might reflect issues related to the likelihood of post-judgment collection. To the extent that these considerations are given any weight it would be only where the Court has some initial basis not to automatically award costs to the prevailing party.
ANALYSIS
Defendant was the prevailing party in this action pursuant to a jury verdict rendered in her favor. The sole Plaintiff in this matter was K.C., a minor, who prosecuted this case through her Natural Mother and Next Friend, Kathleen Calaway, who participated only in her representative capacity. Therefore, any costs taxed in this case would be charged against K.C., and her representative, Kathleen Calaway, is without any personal liability for such costs.
Defendant timely filed a Bill of Costs pursuant to Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920 in the aggregate amount of $30,007.67. The costs submitted by Defendant were for Summons and Subpoenas ($2,983.00); Fees for Transcripts and Related Expenditures ($17,540.84); Witness Fees and Expenses ($5,586.70); Copy Fees ($3,426.45); and Other Costs ($488.68). Documentation was sufficient to substantiate these expenditures, so the overarching issue is whether Plaintiff has submitted objections sufficient to overcome the presumption that Defendant, as the prevailing party, ought to recover costs. General Objections To Awarding Costs
Plaintiff's first general objection to Defendant recovering costs is the assertion that this case was "close and difficult." The Clerk acknowledges that this case was extensively worked by both Plaintiff and Defendant. It lasted from 2002 through September 2013, a period of more than ten years. There were over 500 docket entries prior to trial. Two appeals were filed and fought to conclusion during this ten year period, and the case was finally tried to a jury. There is no doubt, therefore, that this case was protracted, hard fought and thoroughly presented. Nevertheless, the measure of whether a case is "close and difficult" is not decided by the number of pleadings, the number of witnesses or its duration. The core issue is whether the case presented complex issues of fact, whether the sheer weight of evidence, including documents, witnesses, experts and the like, was so voluminous that just trying to assemble the case was a complicated process, whether novel and complex legal principals were in issue and whether the case was highly technical as to the legal issues and the factual details that had to be mastered. The typical "close and difficult" case is more akin to complex antitrust or patent infringement actions whereas the central issue in this case was one involving medical malpractice. It was, in essence, a straight forward standard of care case despite the emergence of some novel issues that, at their core, did not touch on the factual issue of whether Defendant failed to meet required standards of medical care. The Clerk does not find for purposes of assessing costs that this was a "close and difficult" case.
Plaintiff next objects to awarding costs on the basis that costs were increased because Defendant raised two "unmeritorious" issues that protracted this case. The Clerk has reviewed the two issues referred to and has reviewed the presentations of counsel regarding the issue of whether these two issues actually increased the cost of litigation or whether their impact was nominal. The Clerk has concluded that the costs attributable to these two issues were less than $500. Moreover, the Clerk does not find that these issues were "unmeritorious" even though they did not directly bear on the issue of whether Defendant provided less than an acceptable level of care. The Clerk, therefore, rejects Plaintiff's second general objection.
Plaintiff's third general objection is that the award of costs to Defendant, particularly the award of more than $30,000.00, would have a "chilling effect" on similarly situated litigants who would be deterred from filing cases in what might be meritorious claims. The Clerk rejects this argument because the "chilling effect" objection is more appropriately directed to cases where a public policy issue is at stake or where there are broadly applicable issues that could affect a wide class of potential litigants. The instant case presents a one-on-one setting in which the central issue is highly personal and rather tightly defined, namely, whether or not the Defendant failed to exercise the expected and acceptable standard of care in treating Plaintiff. Moreover, as the Clerk noted at the cost taxation hearing, while $30,000.00 is a sizeable sum in terms of having to pay litigation expenses for a losing effort, the fact is that after more than ten years of presenting and defending this action, an aggregate $30,000.00 cost figure is actually quite reasonable. There were, to be sure, other costs not submitted to the Clerk, but in terms of what is being requested under 28 U.S.C. § 1920, these costs are not exceptional and do not create a "chilling effect."
Plaintiff's fourth general objection is the argument that Kathleen Calaway has no personal liability for costs because she acted solely in her representative capacity. The Clerk concurs with this objection, and any costs awarded will be charged against K.C. and not Kathleen Calaway. Specific Objections to Awarding Costs
Plaintiff's first specific objection is that Defendant's expenses (which were basically travel, lodging and per diem charges related to her travel to Memphis from her then current residence in another state for trial. Plaintiff objects to Defendant recovering these expenses because the expenses of party witnesses are not taxable as costs. Defendant counters this objection by noting that Defendant was a designated witness by both sides and therefore had to be in Memphis as a witness, regardless of whether she was also a party. The Clerk, however, agrees with the Plaintiff that the expenses for a party witness are not recoverable and, therefore, denies recovery in the amount of $2,336.90, which is the aggregate cost of Defendant's travel for trial.
Plaintiff's second specific objection pertains to the cost of depositions and other court reporter charges. Each of these charges was reviewed with counsel at the cost taxation hearing. The Clerk is denying the following transcripts for the reasons noted in the following chart.
| Deposition | Date | Amount | Reason Recovery Denied |
|---|---|---|---|
| Digitizing Dr. Stokes | 4/6/2009 | $133.83 | Convenience/Overhead Expense |
| Digitizing Dr. Schucker | 6/29/2009 | $54.63 | Convenience/Overhead Expense |
| Court Appearance | 7/19/2011 | $159.00 | Release of Settlement (Discovery) |
| Court Appearance | 8/31/2011 | $163.50 | Release of Settlement (Discovery) |
| Court Appearance | 9/7/2011 | $102.25 | Release of Settlement (Discovery) |
| Trial Transcript | Pretrial | $187.65 | Trial Transcripts (Convenience/Not Necessary) |
| Trial Transcript | Opening | $96.80 | Trial Transcripts (Convenience/Not Necessary) |
| Trial Transcript | 9/1/2013 | $451.05 | Trial Transcripts (Convenience/Not Necessary) |
| Trial Transcript | 9/5/2013 | $232.15 | Trial Transcripts (Convenience/Not Necessary) |
| Trial Transcript | Closing | $184.14 | Trial Transcripts (Convenience/Not Necessary) |
| Trial Transcript | Post-Trial | $146.00 | Trial Transcripts (Convenience/Not Necessary) |
| TOTAL | $1,911.00 |
Plaintiff's third specific objection pertains to subpoena expenses. Defendant has requested a total of $2,983.00 related to subpoena service. Plaintiff objects to these subpoena expenses to the extent that Defendant subpoenaed medical records that extended well beyond those needed to prosecute or defend the underlying issues. For example, K.C. was born in 1996, yet the medical records subpoenaed by Defendant covered the following dates: 5/7/2009; 6/16/2009 and 5/5/2013. Plaintiff sees no reason that medical records pertaining to dates that are 17 years beyond K.C.'s birth were needed in this case. Defendant responded that they were needed because they related to the long-term impact of K.C.'s injury. They were not about the delivery itself but pertained instead to K.C.'s ongoing, long-term impact. The Clerk has determined that Defendant had the right to obtain ongoing medical records to specifically track and evaluate K.C.'s long term harm regardless of the fact that they had little or no bearing on the underlying standard of care issues. The Clerk, therefore, awards these subpoena expenses other than the subpoena for medical records dated 5/19/2009, which Defendant's counsel acknowledged were erroneously included in the Bill of Costs documentation. Therefore, the Clerk will deny $534.00 of these expenses.
Plaintiff's next objection pertains to Defendant's request to recover copy expenses. In evaluating the recovery of copy charges, the Clerk considers the rate per page being charged, whether the copies being made were merely convenience copies for counsel or their clients, whether the nature of the documents being copied were within the scope of 28 U.S.C. § 1920 and whether there is at least minimal documentation supporting copy charges. The Clerk does not, however, require a level of specificity in terms of documentation that makes it economically unfeasible to recover such expenses. During the cost taxation hearing, counsel and the Clerk reviewed these charges and the Clerk reassessed them afterwards. The Clerk has concluded that some of these copy charges ought to be denied because they were made solely for convenience, solely for investigative purposes or solely for internal use, such as providing research to or about expert witnesses. What follows is a summary of the copy charges that the Clerk is denying and the reason therefore.
| Description | Date | AmountDenied | Reason Recovery Denied |
|---|---|---|---|
| Deposition - Stokes | 11/12/2003 | $28.00 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 12/12/2003 | $540.80 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 1/9/2004 | $101.80 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 1/8/2004 | $17.36 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 12/19/2003 | $238.00 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 1/30/2004 | $11.40 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 8/28/2006 | $99.60 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 9/7/2006 | $49.50 | For Impeachment Purposes Only(from other cases) |
| Deposition - Stokes | 8/22/2006 | $60.00 | For Impeachment Purposes Only(from other cases) |
| Deposition - Barnes | 10/10/2006 | $45.00 | For Impeachment Purposes Only(from other cases) |
| Deposition - Barnes | 11/22/2006 | $82.50 | For Impeachment Purposes Only(from other cases) |
| Documents - Reddix | 6/22/2009 | $26.00 | For Impeachment Purposes Only(from other cases) |
| Medical Articles | 10/9/2006 | $220.00 | Research (overhead) |
| Documents - Martin | 2/3/2009 | $160.00 | Copies for Defendant's Experts(overhead) |
| Documents - ClaimsCommission | 8/18/2011 | $33.00 | Separate Case |
| Documents - Steed | 6/18/2013 | $64.60 | Copies for Defendant's Experts |
| Baker & Whitt | 9/4/2013 | $149.60 | Overhead (law firm use) |
| Baker & Whitt | 9/4/2013 | $63.40 | Overhead (law firm use) |
| TOTAL | $1,990.56 |
Plaintiff's final objection is based on Defendant's PACER expenses. It is well settled in this district that the cost of legal research using PACER, Westlaw, LexisNexis, and other services is not a taxable cost. It is an overhead expense that counsel must absorb or bill its clients to recover. The Clerk, therefore, denies recovery for $488.68 representing Defendant's legal research fees.
DECISION
Based on the foregoing analysis, the Clerk denies recovery in the amount of $7,261.14, which is hereby deducted from the costs submitted by Defendant, which totaled $30,007.67. The net costs, therefore, awarded in favor of the Defendant Jodi Schucker, M.D. and against the Plaintiff K.C. are $22,746.53.
NOTICE OF RIGHT TO HAVE DECISION REVIEWED
Pursuant to Fed. R. Civ. P. Rule 54(d), the taxation of costs by the Clerk of Court may be reviewed by the Court upon motion to the Court served within 5 days of the docketing of this Order. Dated: February 25, 2014.
s/ Thomas M. Gould
Thomas M. Gould, Clerk of Court