Clark et al v. Baka et al

Filing 498

ORDER finding as moot 485 Motion for Bill of Costs; denying 487 Motion for New Trial; granting in part and denying in part 490 Motion for Bill of Costs. The Clerk shall tax $11,378.89 against the Clarks, as outlined in this Order. Signed by Judge D. P. Marshall Jr. on 7/19/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RONALD MARK CLARK, Individually
and as Next Friend and Guardian of
Forrest Manning, a Minor; and MARGARET
KELLY CLARK, Individually and as Next
Friend and Guardian of Forrest Manning, a
Minor
v.

PLAINTIFFS

Case No. 4:07-cv-477-DPM

JOHN BAKA, M.D. and JOHN V. BAKA,
M.D., P.A.

DEFENDANTS

ORDER
After a three-week trial in February, a twelve-person jury returned a
verdict in favor of Dr. Baka.* The Court has entered judgment on that verdict.
Document No. 484. The Clarks move for a new trial; and Dr. Baka moves for
costs. Dr. Baka requests oral argument, but the papers cover this ground well.
1. New Trial. The Court denies the Clarks’ motion for a new trial. This
case was well and carefully tried by both parties. None of the Clarks’ reasons
for retrying the case have merit; and the Court knows of no reason of record

As at trial and in earlier orders, “Dr. Baka” means both Defendants.

*

that would justify this extraordinary relief. FED. R. CIV. P. 59(a)(1)(A);
McKnight By and Through Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1400
(8th Cir. 1994).
Judge Eisele’s decision ending discovery in December 2008 did not, in
the Court’s view, prejudice the Clarks for several reasons. First, the Court
recalls no motion to reopen discovery (either before or after I took over the
case) and the docket reveals no such motion. Second, the Clarks presented
detailed testimony from their grandson’s doctors, teachers, and family
members. Much of this, of course, was about the boy’s difficult birth and
initial treatment. But there was also plenty of information about his school
performance, his cognitive abilities and deficiencies, and his daily life. Mrs.
Clark gave particularly detailed and compelling testimony about what this
young man can and cannot do—including at the present time. Third, the
Court received school records through 2010 into evidence. Fourth, at the
Clarks’ request and over Dr. Baka’s objection, the Court allowed Dr. Naramor
(the Clarks’ neuropsychology expert) to testify about her September 2009
follow-up evaluation. Dr. Naramor testified at some length about how, in her
opinion, the boy’s cognitive functioning was trending down.
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In sum,

notwithstanding the practical need to stop discovery at some point, the jury
got plenty of information about the boy’s current condition.
The Court stands by its decision on what the Clarks called a “Day In The
Life” video.

As the Clarks’ authorities indicate, this kind of video is

informative. But the Clarks did not offer a video about a typical day for their
grandson. They offered several video clips: one showed the boy having
difficulty catching a football, while the others showed Dr. Naramor
performing psychological testing on the boy. The Court allowed the catch clip
and rejected the testing clips. The rejected portions simply did not show this
young man dressing, playing, eating, riding his bike, doing homework, or
using a computer—the usual daily activities of a ten-year-old boy.
The Court also disagrees that Jody Hagen’s expert testimony for Dr.
Baka justifies a new trial. First, Dr. Hagen would not have been able to offer
any opinions about the boy’s cognitive functioning had the Clarks not chosen
to use Dr. Naramor’s 2009 supplemental evaluation, which was otherwise
inadmissible under the scheduling order. Document No. 431, at 3–4. Second,
the Clarks did not move to strike Dr. Hagen’s testimony, or otherwise make
any objection to its scope, during the trial. Third, the Court thought the
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Clarks’ cross-examination of Dr. Hagen was particularly effective.

For

example, the Clark’s counsel eventually got Dr. Hagen to agree (albeit
reluctantly) that this young man had a learning problem because he had brain
damage. This was one of the take-your-breath moments of the trial—a big
concession in the Clarks’ favor.
Finally, events during deliberations provide no basis for a new trial.
The Court has no question about the verdict’s reliability: the evidence did not
clearly weigh for either side; this was a case for the jury to decide. The parties
made their case to this jury for thirteen days—including two days when the
courthouse was otherwise shut down because of snow. The jurors were
attentive throughout; most of them took lots of notes. The Court submitted
the case in the middle of day thirteen. And the jury deliberated for about four
hours before going home for the night.
The jury continued deliberations throughout day fourteen. In the
morning, the Court proposed a plan for the day to counsel: if the jury was still
deliberating mid-afternoon, call the jurors in and tell them arrangements had
been made for them to work into the evening and on Saturday, rather than
breaking for the weekend. Counsel for both parties agreed. In the early
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afternoon, the jury asked a question about proximate cause. After consulting
with counsel, the Court answered by referring the jury to the agreed
instruction on proximate cause. The Court recalls no confusion here; instead
the jury was wrestling with one of the key liability issues. About an hour
later, and as planned, the Court brought the jurors in and told them they
would keep working until about 7:00 p.m. and then start fresh Saturday
morning. The Clarks did not object; they had agreed to this schedule. The
jury deliberated about an hour and a half more and then returned its verdict.
The Court polled the jury at the Clarks’ request. And each juror confirmed his
or her verdict for Dr. Baka. After all the effort these jurors put into this case,
the argument that this verdict was the product of a “let’s get out of here for
the weekend” attitude is hollow.
2. Costs. Dr. Baka asks for $13,916.28 for deposition expenses and
$3,346.54 for copying and exhibit expenses—a total of $17,262.82 in costs.
Document No. 490-5, at 1. The Clarks object, contesting specific items in the bill
and urging that costs be denied entirely in light of the Clarks’ strained
finances. Document No. 488, at 2–11.

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Federal Rule of Civil Procedure 54(d) creates a presumption that
“costs—other than attorney’s fees—should be allowed to the prevailing
party.” And 28 U.S.C.A. § 1920 defines the costs the Court may, in its
informed discretion, tax against losing parties such as the Clarks. See generally
Little Rock Cardiology Clinic P.A. v. Baptist Health, 591 F.3d 591, 601–02 (8th Cir.
2009). Dr. Baka seeks costs for “printed or electronically recorded transcripts”
and for “exemplification and the costs of making copies[.]” 28 U.S.C.A. §
1920(2) & (4) (West Supp. 2011). The Court has “broad discretion” to award
these costs or not. Little Rock Cardiology, 591 F.3d at 601.
• Transcribed Depositions and Video Depositions. Most of the costs
sought by Dr. Baka are associated with depositions. First, the Court agrees
with the Clarks that Dr. Baka should not be awarded costs for the 31
December 2008 deposition of Dr. Zimmerman. Because Dr. Zimmerman’s
erata changes necessitated another deposition, Dr. Baka should not recover
the $228.75 cost of this second deposition.
The Clarks also argue that costs should not be awarded on sixteen of Dr.
Baka’s deposition invoices because they are un-itemized. The Court agrees
in part. Some of the invoices are at least minimally itemized. (For example,
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the invoice for Dr. Phillips’s deposition states that the cost is for one certified
copy of the transcript.) The Court finds this sufficient.
Several of the deposition invoices that Dr. Baka submitted, however, are
completely un-itemized. Document No. 490-2 at 1, 5, 10, 12, & 17. These
particular invoices do not indicate whether the costs represent only necessary
expenses (such as the certified copy of the transcript) or whether they also
contain some convenience expenses (such as extra fees for an expedited copy).
Because Dr. Baka has not shown with specificity the costs associated with
these un-itemized deposition invoices, the Court denies those costs. The
Court also denies costs for expediting transcripts, e-transcripts, ASCII &
condensed transcripts, color copies, color exhibits, second sets of exhibits,
processing and delivery charges, early-appearance fees, and after-hours rates.
Dr. Baka has made no showing that any of these extras was necessary. The
Court therefore awards $6,799.27 in allowable transcript costs, as represented
in the itemized invoices submitted by Dr. Baka. Document No. 490-2, at 2–4,
6–9, 11, 13–16, 19–20, & 28.
Dr. Baka also seeks reimbursement for videoing several depositions.
These costs are recoverable under § 1920. Craftsmen Limousine, Inc. v. Ford
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Motor Co., 579 F.3d 894, 897–98 (8th Cir. 2009). But when a deposition is also
transcribed, courts disagree about taxing both transcription and video
expenses. Compare E.E.O.C. v. CRST Van Expedited, Inc., No. 07-cv-95-LRR,
2010 WL 520564, at *4–*5 (N.D. Iowa 9 February 2010), with Rohrbough v. Hall,
No. 4:07-cv-996-ERW, 2010 WL 4940954, at *2 (E.D. Mo. 30 November 2010).
Dr. Baka seeks video deposition costs for thirteen depositions that were also
transcribed. Document No. 490-2, at 21–27. Of these, the only ones used at trial
were those of Dr. Baka ($150), Becky Manning ($1,080), L. Wingo, C. Mattis,
and K. Schmidt ($804.25 collectively). Again, the Court denies costs for
postage, shipping and handling, and after-hours rates because Dr. Baka has
made no showing that any of these extras was necessary. The Court will
allow $2,034.25 in costs for video copies of the depositions used at trial.
But Dr. Baka has made no adequate showing about the necessity of
video copies of the remaining depositions. He says only that he “required
copies of these video depositions to prepare for the trial of this case.”
Document No. 489, at 4. Helpful the videos no doubt were, but helpfulness
does not establish necessity. CRST Van Expedited, 2010 WL 520564, at *6. The
Court is not persuaded that these copies were “necessarily obtained for use
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in the case.” 28 U.S.C.A. § 1920(2) (West Supp. 2011). Nor has Dr. Baka
shown the necessity of certain after-hours costs and shipping fees.
“Defendant must do more than submit an itemized statement of its costs.
Defendant must show that [the action taken and the associated costs were]
necessary for the case, and not because it was the most convenient course of
action.” Luster v. Baptist Medical Center, No. 4:04-cv-486-WRW, 2007 WL
1443221, at * 2 (E.D. Ark. 16 May 2007). These remaining video costs are
therefore denied.
In total, Dr. Baka requested $13,916.28 in costs “for printed or
electronically recorded transcripts.” Document No. 490-5, at 1. In its discretion,
the Court finds that $8,833.52 of those costs—$6,799.27 for deposition
transcripts and $2,034.25 for video deposition recordings—were necessary.
All other deposition-related costs are denied.
• Copies and Demonstrative Exhibits. Dr. Baka seeks $1,744.49 for
copies and binding costs. Document No. 490-3, at 1. He says that he had four
copies of his exhibits made and bound: “an original, a copy for the judge, a
copy for the witness, and a working copy.” Document No. 489, at 3. The first
three sets were required by the Court and were therefore “necessarily
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obtained for use in the case[.]” 28 U.S.C.A. 1920(4) (West Supp. 2011). Of
course Dr. Baka needed a copy to work with too. The $1,744.49 for copying
and binding the four sets of exhibits is therefore allowed.
Dr. Baka’s last request is for $1,601.75 in costs for demonstratives. This
figure includes costs for thirty black-and-white trial boards, one color trial
board, and three flip charts. Document No. 490-4, at 1. Beyond the invoice,
there is no indication of how many of these exhibits were actually used at
trial. Dr. Baka believes all these demonstratives were necessary to the
presentation of the case. Document No. 489, at 2–3.
“Neither side has presented their arguments with sufficient specificity
to allow the Court to make an item by item determination of whether [Dr.
Baka] is entitled to recover costs” for each of the thirty-four boards and charts.
Chism v. New Holland North America, Inc., No. 2:07-cv-150-JTR, 2010 WL
1961179, at *8 (E.D. Ark. 13 May 2010). The Court nonetheless concludes that
at least half of Dr. Baka’s demonstrative exhibits were necessary and helpful
in presenting the case to the jury. He is therefore entitled to $800.88 of these
requested costs.

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• Reduction for Indigency. The Court may consider a losing litigant’s
inability to pay in exercising informed discretion about costs. Cross v. General
Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). To that end the Clarks
submitted information about their finances under seal. Document No. 497.
The record is now clear, however, that their finances are beside the point
because the Clarks are not obligated to pay any costs awarded; their lawyers
are. Ibid.
* * *
Motion for new trial, Document No. 487, denied. Amended motion for
costs, Document No. 490, granted in part and denied in part. Original motion
for costs, Document No. 485, denied as moot. The Clerk shall tax $11,378.89
against the Clarks. Here is a summary:
Deposition Transcripts . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,799.27
Deposition Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,034.25
Copies of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,744.49
Demonstratives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $800.88
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $11,378.89

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If the Clarks file a timely notice of appeal, then enforcement of the costs award
is stayed (without bond) until seven days after the Eighth Circuit issues its
mandate.
So Ordered.

____________________________________
D.P. Marshall Jr.
United States District Judge
19 July 2011

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