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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 I.P., A MINOR, BY AND THROUGH HER GARDIAN AD LITEM, FACUNDO PALACIO DIEZ; MICAELA PALACIO, 13 No. 2:13-cv-01012-JAM-CKD ORDER AWARDING COSTS Plaintiffs, 14 v. 15 UNITED STATES OF AMERICA, 16 Defendant. 17 Plaintiff I.P. and her mother, Micaela Palacio, 18 19 (collectively, “Plaintiffs”) sued the United States 20 (“Defendant”), alleging that the negligence of its doctors caused 21 I.P.’s brain damage. 22 damages to Plaintiffs, who now move for an award of costs. 23 Court takes up Defendant’s objections to that bill of costs 24 herein. 1 25 /// Following a bench trial, the Court awarded 26 27 28 1 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. 1 The 1 2 I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs prevailed at trial against the United States on 3 the issue of negligence of its physician, Dr. Paul Davainis, 4 during the birth of Plaintiff I.P. 5 issue of negligence with respect to another physician it 6 employed, Dr. Paul Holmes. 7 Health (the hospital, for the alleged negligence of its nurses) 8 in state court and obtained a settlement. 9 Defendant prevailed on the Plaintiffs previously sued Banner Plaintiffs now seek costs from Defendant in the amount of 10 $50,320.70 (Doc. #178). 11 and Plaintiffs provided a “supplemental declaration” of 12 Plaintiffs’ counsel (Doc. #180). 13 objections in part, as discussed below. Defendant filed objections (Doc. #179), The Court sustains the 14 15 16 II. OPINION In general, costs “should be allowed to the prevailing 17 party.” Fed. R. Civ. P. 54(d)(1). The party seeking costs must 18 attest that the fees were “necessarily incurred.” 19 The district court has discretion to refuse to award costs. 20 Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 591 21 (9th Cir. 2000). L.R. 292(b). 22 Defendant makes four objections to Plaintiffs’ bill of 23 costs: (1) that Plaintiffs were not the prevailing party on the 24 issue of negligence in Dr. Holmes’s resuscitation of I.P., and 25 are therefore not entitled to costs arising from litigation on 26 that issue; (2) that Plaintiffs may not recover costs for claims 27 against the Banner Health defendants; (3) that actual travel 28 expenses (as opposed to mileage) are the appropriate measure of 2 1 air travel costs; and (4) that costs for videotaping depositions 2 and “for movies at [an expert witness’s] hotel” are not 3 recoverable. 4 First, the Court agrees that Defendant prevailed on the 5 claims related to Dr. Holmes’s resuscitation of I.P. The costs 6 specifically related to that issue are therefore not recoverable 7 by Plaintiffs. 8 expert witnesses opining about the resuscitation standard of care 9 (Drs. Rhine, Fredlich, and Sherman), totaling $4,366.72. These include travel and deposition costs for See 10 Bill of Costs at 6, 59. 11 The Court finds however that the deposition of Dr. Holmes himself 12 was related not only to the resuscitation, but also to the claims 13 against Dr. Davainis, on which Plaintiff prevailed. 14 his deposition fees are recoverable and the Court overrules the 15 objection as to Dr. Holmes’s deposition. 16 The Court therefore deducts those costs. Therefore, As to the claims against Banner Health, the Court agrees 17 that such costs were not “necessarily incurred” as part of the 18 litigation against the United States. 19 not recover these costs from Defendant. 20 deducts deposition costs for Ms. Mahlmeister, Ms. Weeber, Mr. 21 Boukidis, Ms. Olzack, and Drs. Ross, BeDell, Kush, and Goldsmith. 22 These deductions total $7,391.77. 23 Plaintiffs therefore may The Court accordingly See Bill of Costs at 6-7. Next, the Court agrees that Plaintiffs are only entitled to 24 actual travel costs for those witnesses who traveled by plane. 25 See 28 U.S.C. § 1821(c)(1). 26 originally-stated mileage costs for Drs. Lott, Manning, Formuzis, 27 and Montes (totaling $6,029.45, see Bill of Costs at 53, 56, 62, 28 68), and adds the following actual travel costs: $506.00 for Dr. The Court therefore deducts the 3 1 Lott, $1,007.98 for Dr. Manning, $506.00 for Dr. Formuzis, and 2 $646.00 for Dr. Montes. 3 292(d). 4 See Suppl. Fagel Decl. ¶¶ 1-5; L.R. The Court also sustains the objection regarding videotaping. 5 In order to recover such costs, “the prevailing party must 6 demonstrate that a videotaped copy of the deposition was 7 necessary.” 8 56639, at *5 (E.D. Cal. Jan. 3, 2013). 9 explained why they needed to videotape three of the experts’ Weco Supply Co. v. Sherwin-Williams Co., 2013 WL Here, Plaintiffs have not 10 depositions or why they additionally needed to videotape 11 Plaintiffs’ counsel questioning Defendant’s witness. 12 Costs at 7, 47. 13 videotaping the depositions, and accordingly reduces the award by 14 $1,430.00. 15 at *3 (E.D. Cal. Nov. 1, 2007) (“Allstate is not entitled to 16 recover for [videotaping] costs because it failed to provide a 17 rationale justifying why [it was] necessary for the 18 litigation.”). 19 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 20 Plaintiffs’ expert witness’s hotel stay will be deducted as 21 unnecessary to the litigation. 22 23 24 25 26 27 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 28 4 $50,320.70 -$ 4,366.72 -$ 7,391.77 -$ 3,363.47 -$ 1,430.00 -$ 17.99 $36,646.73 1 III. ORDER 2 For the reasons set forth above, the Court SUSTAINS the 3 objections in part and awards costs for Plaintiffs in the amount 4 of $36,646.73. 5 6 IT IS SO ORDERED. Dated: March 23, 2016 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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