Palacio, et al v. United States of America
Filing
185
ORDER signed by District Judge John A. Mendez on 3/23/16 ORDERING for the reasons set forth above, the Court SUSTAINS the objections in part and awards costs for Plaintiffs in the amount of $36,646.73. (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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I.P., A MINOR, BY AND THROUGH
HER GARDIAN AD LITEM, FACUNDO
PALACIO DIEZ; MICAELA
PALACIO,
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No.
2:13-cv-01012-JAM-CKD
ORDER AWARDING COSTS
Plaintiffs,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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Plaintiff I.P. and her mother, Micaela Palacio,
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(collectively, “Plaintiffs”) sued the United States
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(“Defendant”), alleging that the negligence of its doctors caused
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I.P.’s brain damage.
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damages to Plaintiffs, who now move for an award of costs.
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Court takes up Defendant’s objections to that bill of costs
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herein. 1
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///
Following a bench trial, the Court awarded
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The objections were determined to be suitable for decision
without oral argument. E.D. Cal. L.R. 230(g), 292(d). The
hearing was scheduled for March 22, 2016.
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The
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I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs prevailed at trial against the United States on
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the issue of negligence of its physician, Dr. Paul Davainis,
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during the birth of Plaintiff I.P.
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issue of negligence with respect to another physician it
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employed, Dr. Paul Holmes.
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Health (the hospital, for the alleged negligence of its nurses)
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in state court and obtained a settlement.
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Defendant prevailed on the
Plaintiffs previously sued Banner
Plaintiffs now seek costs from Defendant in the amount of
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$50,320.70 (Doc. #178).
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and Plaintiffs provided a “supplemental declaration” of
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Plaintiffs’ counsel (Doc. #180).
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objections in part, as discussed below.
Defendant filed objections (Doc. #179),
The Court sustains the
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II.
OPINION
In general, costs “should be allowed to the prevailing
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party.”
Fed. R. Civ. P. 54(d)(1).
The party seeking costs must
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attest that the fees were “necessarily incurred.”
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The district court has discretion to refuse to award costs.
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Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 591
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(9th Cir. 2000).
L.R. 292(b).
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Defendant makes four objections to Plaintiffs’ bill of
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costs: (1) that Plaintiffs were not the prevailing party on the
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issue of negligence in Dr. Holmes’s resuscitation of I.P., and
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are therefore not entitled to costs arising from litigation on
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that issue; (2) that Plaintiffs may not recover costs for claims
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against the Banner Health defendants; (3) that actual travel
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expenses (as opposed to mileage) are the appropriate measure of
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air travel costs; and (4) that costs for videotaping depositions
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and “for movies at [an expert witness’s] hotel” are not
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recoverable.
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First, the Court agrees that Defendant prevailed on the
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claims related to Dr. Holmes’s resuscitation of I.P.
The costs
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specifically related to that issue are therefore not recoverable
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by Plaintiffs.
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expert witnesses opining about the resuscitation standard of care
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(Drs. Rhine, Fredlich, and Sherman), totaling $4,366.72.
These include travel and deposition costs for
See
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Bill of Costs at 6, 59.
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The Court finds however that the deposition of Dr. Holmes himself
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was related not only to the resuscitation, but also to the claims
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against Dr. Davainis, on which Plaintiff prevailed.
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his deposition fees are recoverable and the Court overrules the
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objection as to Dr. Holmes’s deposition.
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The Court therefore deducts those costs.
Therefore,
As to the claims against Banner Health, the Court agrees
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that such costs were not “necessarily incurred” as part of the
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litigation against the United States.
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not recover these costs from Defendant.
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deducts deposition costs for Ms. Mahlmeister, Ms. Weeber, Mr.
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Boukidis, Ms. Olzack, and Drs. Ross, BeDell, Kush, and Goldsmith.
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These deductions total $7,391.77.
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Plaintiffs therefore may
The Court accordingly
See Bill of Costs at 6-7.
Next, the Court agrees that Plaintiffs are only entitled to
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actual travel costs for those witnesses who traveled by plane.
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See 28 U.S.C. § 1821(c)(1).
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originally-stated mileage costs for Drs. Lott, Manning, Formuzis,
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and Montes (totaling $6,029.45, see Bill of Costs at 53, 56, 62,
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68), and adds the following actual travel costs: $506.00 for Dr.
The Court therefore deducts the
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Lott, $1,007.98 for Dr. Manning, $506.00 for Dr. Formuzis, and
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$646.00 for Dr. Montes.
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292(d).
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See Suppl. Fagel Decl. ¶¶ 1-5; L.R.
The Court also sustains the objection regarding videotaping.
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In order to recover such costs, “the prevailing party must
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demonstrate that a videotaped copy of the deposition was
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necessary.”
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56639, at *5 (E.D. Cal. Jan. 3, 2013).
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explained why they needed to videotape three of the experts’
Weco Supply Co. v. Sherwin-Williams Co., 2013 WL
Here, Plaintiffs have not
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depositions or why they additionally needed to videotape
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Plaintiffs’ counsel questioning Defendant’s witness.
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Costs at 7, 47.
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videotaping the depositions, and accordingly reduces the award by
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$1,430.00.
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at *3 (E.D. Cal. Nov. 1, 2007) (“Allstate is not entitled to
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recover for [videotaping] costs because it failed to provide a
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rationale justifying why [it was] necessary for the
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litigation.”).
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See Bill of
The Court therefore declines to award costs for
See id.; Terry v. Allstate Ins. Co., 2007 WL 3231716,
Finally, the “TV Services” charges of $17.99 during
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Plaintiffs’ expert witness’s hotel stay will be deducted as
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unnecessary to the litigation.
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See Bill of Costs at 63.
In sum:
Original amount of costs requested
Deduction for costs related to resuscitation
negligence issue
Deduction for costs associated with Banner Health
claims
Deduction for improper air travel costs
Deduction for videotaping costs
Deduction for TV services at hotel
TOTAL costs awarded
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$50,320.70
-$ 4,366.72
-$ 7,391.77
-$ 3,363.47
-$ 1,430.00
-$
17.99
$36,646.73
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III.
ORDER
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For the reasons set forth above, the Court SUSTAINS the
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objections in part and awards costs for Plaintiffs in the amount
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of $36,646.73.
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IT IS SO ORDERED.
Dated:
March 23, 2016
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