Watson et al v. Dillon Companies, Inc. et al

Filing 910

ORDER that Plaintiffs Renewed Motion for Costs and Correction of Pre- Judgment Interest Rate ECF No. 896 is GRANTED to the extent that pursuant to Colo. Rev. Stat. § 6-1-113(2)(b), costs are taxed in the amount of $387,189.33 against th e Defendants. The motion is also GRANTED to the extent that Plaintiffs are entitled to prejudgment interest at a rate of 9% per annum. The motion is DENIED in all other respects. It is FURTHER ORDERED that Defendant Dillon Companies' Uno pposed Motion to Amend Amended Final Judgment Pursuant to Fed. R. Civ. P. 60(a) ECF No. 909 is GRANTED. It is FURTHER ORDERED that the Clerk of the Court shall amend the Final Judgment consistent with this Order, by Judge Wiley Y. Daniel on 11/13/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 08-cv-00091-WYD-CBS
WAYNE WATSON and
MARY WATSON
Plaintiffs,
v.
DILLON COMPANIES, INC., d/b/a KING SOOPERS, also d/b/a INTER-AMERICAN
PRODUCTS, INC., et al.
Defendants.

ORDER

I.

INTRODUCTION
This matter is before me on Plaintiffs’ Renewed Motion for Costs and Correction

of Pre-Judgment Interest Rate (ECF No. 896). Plaintiffs seek an award of costs in the
amount of $515,257.28 as authorized by Colo. Rev. Stat. § 6-1-113(2) in addition to
attorney fees and the costs previously awarded by the Clerk of the Court. Plaintiffs
further request that I amend the judgment to award prejudgment interest at a rate of 9%
per annum. For the reasons stated below, the motion is granted in part and denied in
part.
By way of background, following a two-week jury trial, the jury returned a verdict
in favor of the Plaintiffs on the following four claims: (1) strict liability; (2) failure to warn:
(3) negligence; and (4) deceptive trade practices under the Colorado Consumer
Protection Act (“CCPA”). On September 26, 2012, Judgment was entered in favor of
the Plaintiffs and against the Defendants in the amount of $7,217,961. In a written

order, I granted Defendants’ motion to alter or amend the judgment and reduced the
amount of total damages awarded to Plaintiffs to $3,044,829.80.1 (ECF No. 898). In a
separate written order, I granted Plaintiffs’ motion for attorney fees and awarded
Plaintiffs $826,500 in attorney fees pursuant to Colo. Rev. Stat. § 6-1-113. (ECF No.
899). Those orders are incorporated by reference herein.
Relevant to the pending motion, on November 21, 2012, Plaintiffs submitted their
proposed Bill of Costs (ECF No. 843), seeking $649,907.49. After holding a cost
hearing, the Clerk of the Court awarded Plaintiffs $38,439.78 in taxable costs pursuant
to 28 U.S.C. § 1920. The Clerk of the Court’s award did not allow costs pursuant to
Colo. Rev. Stat. § 6-1-113.2 Plaintiffs challenge that determination in the pending
motion. In response, Defendants argue that Plaintiffs may only recover the limited costs
enumerated in 28 U.S.C. § 1920. Alternatively, Defendants challenge specific itemized
costs, suggesting that these costs are both unreasonable or unnecessary and incurred
solely for the convenience of counsel.
II.

STANDARD OF REVIEW
As a threshold matter, I must determine the appropriate legal standard for

evaluating Plaintiffs’ Bill of Costs. Here, if the recovery of costs is governed solely by
Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920, many of Plaintiffs’ claimed costs cannot be

1

A detailed recitation of the background of this case is set forth in the Order
granting Defendants’ motion to alter or amend the judgment and is incorporated by
reference herein.
2

On August 8, 2013, I denied Plaintiffs’ first motion for costs without prejudice
and instructed Plaintiffs to re-file a renewed motion for costs, taking into account the
Clerk of the Court’s January 29, 2013 award.
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recovered. However, should Colo. Rev. Stat. § 6-1-113 apply, Plaintiffs’ requested
costs may, in large part, be recoverable.
Fed. R. Civ. P. 54(d)(1) provides that “[u]less a federal statute, these rules, or a
court order provides otherwise, costs—other than attorney's fees—should be allowed to
the prevailing party.” Recoverable costs under Rule 54(d)(1) are limited to the
expenses enumerated in 28 U.S.C. § 1920, and include fees for transcripts necessarily
obtained for use in the case, fees and disbursements for printing and witnesses, and
fees for exemplification and the costs of making copies of any materials where the
copies are necessarily obtained for use in the case. See Sorbo v. United Parcel
Service, 432 F.3d 1169, 1179 (10th Cir. 2005); see Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441-42 (1987). Although Rule 54(d) creates a presumption that
costs should be awarded to the prevailing party, the taxing of costs is within the sound
discretion of the trial court. See Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th
Cir. 2002).
Here, Plaintiffs seek additional costs not allowable under Rule 54(d) pursuant to
Colo. Rev. Stat. § 6-1-113. The Colorado CCPA statute at issue here provides that
(2) Except in a class action or a case brought for a violation
of section 6-1-709, any person who, in a private civil action,
is found to have engaged in ... any deceptive trade practice
listed in this article shall be liable in an amount equal to the
sum of:
...
(b) In the case of any successful action to enforce said
liability, the costs of the action together with reasonable
attorney fees as determined by the court.
Colo. Rev. Stat. § 6-1-113(2)(b). In this case, the jury concluded that the Defendants
engaged in a deceptive trade practice, as defined by the CCPA, that caused actual
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damages or losses to Plaintiff Wayne Watson. Consistent with my prior order awarding
attorney fees, I find that the CCPA provides for an award of costs to a prevailing plaintiff
who proves that a defendant engaged in a deceptive trade practice as defined by the
Act. See Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1176 (10th Cir. 2000) (holding
that to the extent that a Colorado statute authorizes the award of actual costs other than
those costs authorized by a federal statute or rule, those costs are not barred by Fed. R.
Civ. P. 54(d)(1)); see Infant Swimming Research, Inc. v. Faegre & Benson, LLP, 2008
WL 5044501, at * 4 (D. Colo. Nov. 20, 2008) (holding that state statutes regarding the
award of costs to successful litigants control in diversity actions).
The CCPA does not include its own definition of costs, however, Colorado courts
have held that items such as: (1) costs for transcripts necessarily obtained for use in the
case; (2) photocopy costs; (3) deposition costs; (4) mileage; (5) expert witness fees;
and (6) computerized research expenses constitute costs under the general costs
statute. See Colo. Rev. Stat. § 13-16-122. However, in awarding costs to Plaintiffs, I
use my discretion to determine whether they are reasonable and necessary. Id.
III.

ANALYSIS
A.

Expert Witness Fees

Plaintiffs seek $269,909.34 in expert witness fees. Plaintiffs itemize their expert
witness fees as follows: Allen Parmet $13,360.00; Kathie Allison $4,671.43; James M.
Gracey of the Colorado Institute for Injury Rehabilitation $15,143.41; Dr. Cecile Rose
and Dr. John Martyny of National Jewish Medical & Research Center $12,000; Pat
McKenna of Occupational Therapist & Feasibility $3,225; Dr. John Ward of John Ward
Economics $11,368.80; Candace Su-Jung Tsai, $3,416.67; Colin Soskolne of the
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University of Alberta $17,795; E. Neil Schachter $14,339.39; Never Again Consulting
$112,848; Dr. Egilman $40,269.70; and various other expert witnesses in the amount of
$21,471.94. (Pls’ Mot. at 6).
First, Defendants object to fees attributable to jury consultant Mr. Kich in the
amount of $13,345.27 (ECF No. 845-9).3 I agree with Defendants’ objection. Mr. Kich’s
billing statement includes general descriptions for tasks billed from July 10 to
September 7, 2012, including examples such as “Voir dire drafting,” “Attorney Tel call SH,” and “In-Court Jury Selection.” (ECF No. 844-5). I find that these entries fail to set
forth the particular services provided by Mr. Kich. Mr. Kich never testified at any
hearing nor the trial, thus, I am unable to determine from this billing statement whether
tasks performed by Mr. Kich were reasonable and necessary. Moreover, as set forth in
my order awarding attorney fees, Plaintiffs sought fees for numerous attorneys who
worked on this case, and it is unclear whether Mr. Kich simply duplicated the work of
Plaintiffs’ counsel. Accordingly, I reduce Plaintiffs’ costs request by $13,345.27, the
amount of fees attributable to Mr. Kich.
Second, Defendants challenge fees in the amount of $29,134.39 attributable to
Drs. Schachter and Soskolne for attending the Daubert hearing before District Judge
Walker D. Miller on June 14-15, 2011. (ECF No. 845-9). In support, Defendants assert
that both Schachter and Soskolne submitted duplicative reports, testified to the same
opinions as Drs. Egilman and Parmet at the Daubert hearing, and did not testify at trial.
I disagree with Defendants for two reasons. First, in his lengthy written order denying

3

Plaintiffs’ Bill of Costs includes entries for Mr. Kich’s retainer for trial in the
amount of $1750 and consulting/voir dire in the amount of $11,595.27.
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Defendants’ motion for summary judgment and motions to exclude expert testimony,
Judge Miller admitted evidence and considered testimony from both Drs. Schachter and
Soskolne at the June 2011 Daubert hearing. Judge Miller noted that
Dr. Soskolne was proffered as an expert in epidemiology and
testified that he had reviewed Dr. Egilman’s report for the
purpose of evaluating the reliability of the methods used. He
testified that it is entirely appropriate to extrapolate disease
causation from the occupational setting to other contexts, as
Dr. Egilman did here. Dr. Soskolne also testified that Dr.
Egilman’s methods for arriving at his opinion, including his
use of the Hill factors and a differential diagnosis, were
accepted in the field and were applied validly. He noted that
Dr. Egilman’s source data was provided and that the
methods were reproducible, which are the standards that Dr.
Soskolne would apply in reviewing an article for publication.
(ECF No. 652 at 29). As to Dr. Schachter, Judge Miller found that
Dr. Schachter was offered by Plaintiffs as an expert in
pulmonary medicine. He also had reviewed Dr. Egilman’s
report and was prepared to testify regarding the
reliability of the methodology used by Dr. Egilman. Dr.
Schachter also opined that it is an appropriate scientific
practice to extend theories of causation from occupational
disease to the same disease occurring [in] other settings.
He also explained why it is considered acceptable in [the]
medical field to make a causal inference even without
knowledge of an exact dose or dose threshold of a particular
disease-causing agent. Dr. Schachter testified that Dr.
Egilman applied the Hill criteria appropriately and
properly performed a differential diagnosis in determining the
cause of Mr. Watson’s disease.
(ECF No. 652 at 29-30). Judge Miller clearly considered the expert opinions of both
Drs. Schachter and Soskolne and found them credible in denying Defendants’ Daubert
challenges. Second, while Defendants make a broad assertion that Schachter and
Soskolne submitted duplicative reports and opinions as other Plaintiffs’ expert
witnesses, they fail to point me to any specific examples other than to refer me to
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Schachter’s and Soskolne’s expert reports as a whole. As the parties are very well
aware, this case involves a voluminous record and spans more than five years of active
litigation. I will not cull through hundreds of pages of expert reports and testimony to
determine whether there is some duplication of expert opinions. Thus, based on Judge
Miller’s order, my review of the evidence admitted at trial, and the billing statements, I
find that the fees attributable to Drs. Schachter and Soskolne are both reasonable and
necessary.
Third, Defendants object to fees for work not specific to the instant case and
other unnecessary costs. (Defs’ Resp at 9-10). Specifically, Defendants challenge fees
associated with Plaintiffs’ various expert witnesses arguing that the fees were incurred
working on other cases involving bronchiolitis obliterans allegedly caused by the
consumption of the chemical diacetyl. Here, the issues involving the cause of Mr.
Watson’s injury were vigorously disputed and both parties employed numerous expert
witnesses to testify at trial. The expert witnesses gave opinions as they related to the
particular facts of this case. I cannot say that expert opinions given in an unrelated
case in another district involving different parties and facts were duplicative to the
opinions rendered in this matter. Accordingly, I find the contested expert witness fees to
be both reasonable and necessary under the particular circumstances of this case.
B.

Expert Witness Travel Expenses

Plaintiffs seek $10,248.10 in expert witness travel expenses. Consistent with my
findings in the previous section, I exclude travel expenses for Mr. Kich in the amount of
$963.20. (ECF No. 845-9, p. 37). On the other hand, because I find the remaining
expert witness fees to be reasonable and necessary coupled with the fact that the
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various experts were located throughout the United States, I also find the expert
witnesses’ travel expenses to be reasonable and necessary. See Valentine v. Mountain
States Mut. Cas. Co., 252 P.3d 1182, 1189 (Colo. App. 2011) (holding that a district
court has the discretion to award expert witness travel expenses). Accordingly, I reduce
Plaintiff’s costs request by $963.20, the travel expenses attributable to Mr. Kich.
C.

Attorney Travel Expenses

Plaintiffs request $197,970.49 in attorney travel expenses in this case, including
air fare, rental cars, meals and hotels. Defendants raise various objections to these
costs arguing that an excessive number of attorneys attended the trial and pretrial
hearings. I agree. Consistent with my finding that Plaintiffs’ attorney fee request should
be reduced due to unreasonable duplication and redundant charges, I find that Plaintiffs’
Bill of Costs regarding attorney travel expenses should likewise be reduced. (ECF No.
899 at 7-9) (detailing that the number of attorneys attending the same hearings and the
trial is a concern and reducing the number of requested attorney hours of 6,161 to
3,000). Therefore, in accordance with my reduction of billed attorney hours, I reduce
Plaintiffs’ request for attorney travel expenses to $97,970.49, finding that amount to be
reasonable and necessary.4
D.

Computer Research

Plaintiffs seek $23,482.40 in computerized research fees. To recover

4

Included in my reduction for excessive and redundant travel expenses are
requested costs for travel for Lauren McClain (Attorney Kenneth McClain’s daughter),
Ghada Anis (Wayne Watson’s escort to Kansas City for an appointment with Dr.
Parmet), Bill Seaton (rental truck driver), and rental truck costs, which I find to be
unreasonable and unnecessary. (ECF No. 845-9).
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computerized legal research costs, a party must show that: 1) the client was billed for
the research costs separately from attorney fees; 2) the research was necessary for trial
preparation; and 3) the research costs are reasonable. See Roget v. Grand Pontiac,
Inc., 5 P.3d 341, 349 (Colo. App.1999). Here, I find Plaintiffs satisfied these
requirements. Plaintiffs submitted invoices for computerized legal research and a
supporting affidavit totaling $23,482.40, all of which have been itemized separately from
attorney fees. (ECF Nos. 827-1, 829-2 and 844-1). Based on the fact that many
contested legal issues were raised and argued throughout the course of this case, I find
that these computerized research expenses were reasonably incurred.
E.

Other Costs

Plaintiffs request additional costs for office supplies, conference services, courier
services, document shredding services and the conversion of a video deposition to
include text in the amount of $13,759.48. In support of this request, Plaintiffs have
submitted general billing invoices from numerous vendors with little to no description as
to the nature of the services rendered. For example, there are many bills for conference
calls listing names for multiple people who might have been involved in this case at
some point but are otherwise unfamiliar to the Court. While these costs may have been
reasonable and necessary in litigating this case, the lack of information or description as
to what particular services/tasks were being performed and how they relate to this case
is either completely omitted or unclear. Thus, based on my review of Plaintiffs
submissions, I cannot discern whether these costs were reasonable or necessary.

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(ECF Nos. 844 and 845).5 Accordingly, I reduce Plaintiffs’ costs request by $13,759.48,
the amount of requested fees attributable to “Other Costs” in Plaintiffs’ motion. (ECF
No. 897 at 9).
F.

Additional Costs Recoverable by Plaintiffs Under 28 U.S.C. § 1920

While the Clerk of the Court awarded Plaintiffs $29,133.61 in costs pursuant to
28 U.S.C. § 1920, Plaintiffs believe this award is insufficient in several categories,
namely fees of the court reporter and costs incident to the taking of depositions.
1.

Fees of the Court Reporter for All of Part of the Transcripts

In the original Bill of Costs, Plaintiffs requested $14,345.89 in fees from the court
reporter for transcripts of pre-trial hearings. The Clerk of the Court awarded none of
these fees, explaining that these “are items incurred for convenience of counsel.”
(Clerk’s handwritten notes on Bill of Costs, p. 7 of 86, ECF No. 865). Plaintiffs believe
this award is in error, arguing that these transcripts were necessarily obtained for use in
the case.
As previously noted, § 1920 provides that a judge or clerk may tax as costs the
following expenses:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the
case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily
obtained for use in the case;
(5) Docket fees under section 1923 of this title;

5

Again, without specific citations from Plaintiffs, I will not conduct an independent
review of the massive record in this case in the unlikely event that I will stumble upon a
document that may provide support for Plaintiffs’ request for these costs.
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(6) Compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this
title.
28 U.S.C. § 1920. The Court has no discretion to award costs which are not specifically
set forth in § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 44142 (1987). However, to award the cost of a transcript, I must exercise my discretion in
determining whether a transcript was necessarily obtained for use in the case. See
U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1248 (10th Cir. 1988), overruled
on other grounds as recognized by Anixter v. Home–Stake Prod. Co., 77 F.3d 1215,
1231 (10th Cir. 1996). This does not include transcripts largely procured for the
convenience of counsel. See id.; U.S. Indus, 854 F.2d at 1245.
Here, Plaintiffs submit numerous invoices for pre-trial transcripts without any
explanation as to why the transcripts were prepared. Thus, I have insufficient
information and cannot consider whether they were necessary to counsel’s performance
and not merely for counsel’s convenience. Accordingly, I find that the Clerk of the Court
appropriately excluded these requested costs.
2.

Costs Incident to the Taking of Depositions

In the original Bill of Costs, Plaintiffs requested $36,641.76 in fees for the taking
of depositions. The Clerk of the Court awarded $29,133.61, stating that “[t]hese costs
are awarded per the criteria set forth in Karsian v. Inter-Financial Group, Inc.” (Clerk’s
handwritten notes on Bill of Costs, Pls’ Ex. A, ECF No. 865). Pursuant to Karsian,
§ 1920 provides for the taxation of costs of depositions necessarily obtained for use in
the case. Karsian v. Inter-Financial Group, Inc., 13 F. Supp. 2d 1085, 1088 (D. Colo.

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1998). I adopted the following test in Karsian to determine which deposition costs are
taxable:
(1) costs for depositions taken solely for discovery purposes
or for counsel's convenience are not taxable; (2) costs of
both the stenographic transcription and the videotaping of
the deposition of individuals who later testified at trial are
taxable; (3) costs for depositions cited in summary judgment
briefs are taxable; (4) costs of depositions where depositions
excerpts were exchanged for use at trial are taxable; (5) for
categories 3 and 4 above, only the cost of the stenographic
transcript is taxable, unless the witness also testified at trial;
(6) costs for depositions of individuals who did not testify at
trial or appear on the parties' pretrial order and one of the
parties' final witness lists are not taxable, unless these
depositions fall into category 3 or 4 above; and (7) costs of
the stenographic transcripts of individuals who did not testify
at trial but whose names appeared on the pretrial order as
well as one of the parties' final witness list are taxable.
Id. at 1088. Plaintiffs argue that I should abandon the Karsian test and follow an
approach set forth by a former district judge in another case, Saiz v. Charter Oak Fire
Ins. Co., 2008 WL 2999558, at *3 (D. Colo. Aug. 1, 2008). I reject this argument as
Saiz is not binding on this Court, and Plaintiffs provide no controlling authority in support
of their position. Thus, based on my careful review, I find the Clerk of the Court properly
used the Karsian test in determining that $29,133.61 should be taxed for Plaintiffs’
deposition costs.
IV.

PREJUDGMENT INTEREST
In addition to the request for additional costs set forth in the pending motion,

Plaintiffs also ask that I amend the Final Judgment to include an award of prejudgment
interest at the Colorado rate of 9% per annum. Without citing to any rule, Plaintiffs
labeled this portion of the motion as one for “Adjustment of Prejudgment Interest Rate in

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Final Judgment.” (ECF No. 897). However, a party must make a motion to amend a
judgment pursuant to Fed. R. Civ. P. 59(e) no later than 28 days after the entry of
judgment. The Final Judgment was entered on September 26, 2012. On October 19,
2012, Plaintiffs timely filed their first Rule 59(e) motion, which failed to raise the issue of
prejudgment interest. (ECF No. 817). Thus, Plaintiffs’ pending motion to adjust
prejudgment interest, filed August 27, 2013, is clearly untimely under Rule 59(e).
I next turn to Fed. R. Civ. P. 60(a) and likewise find it inapplicable to the pending
motion. While Rule 60(a) provides that a court can clarify any “mistake arising from
oversight or omission” at any time, the Tenth Circuit has held that a “Rule 60(a) motion
may not be used to alter the rate of prejudgment interest because that would call into
question the substantive correctness of the judgment rather than remedy a clerical error
or omission.” McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 682 (10th Cir. 1989);
see Registry Systems Int’l, Ltd. v. Hamm, 2012 WL 4476630, at *3 (D. Colo. Sep. 28,
2012) (holding that when a final judgment does not mention prejudgment interest, Rule
60(a) is improper). Here, both the Final Judgment (ECF No. 812) and the Amended
Final Judgment (ECF No. 900) awarded post-judgment interest to Plaintiffs, but were
otherwise silent as to prejudgment interest. Thus, I find that Rule 60(a) does not apply
to Plaintiff’s pending request.
Finally, I note that a Fed. R. Civ. P. 60(b)(1) motion for relief from judgment due
to mistake, inadvertence or excusable neglect is timely within one year of the entry of
judgment. Although Plaintiffs do not make their position explicit, they seem to contend
that the September 26, 2012 Final Judgment failed to include an award of prejudgment
interest through some inadvertence or mistake. Thus, I will construe Plaintiffs’ motion
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as one pursuant to Rule 60(b)(1) and (6), and it is timely.
Rule 60(b) provides in pertinent part: that “[o]n motion and just terms, the court
may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; ... or (6) any other reason that justifies relief. I agree with Plaintiffs that
prejudgment interest is appropriate under the law and should be awarded in this case
for several reasons.
First, as a federal court sitting in diversity, I apply state law, not federal law, to the
issue of prejudgment interest. Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226
F.3d 1138, 1156 (10th Cir. 2000). Under Colorado law, an award of prejudgment
interest is mandatory in personal injury cases such as this matter. Colo. Rev. Stat. §
13-21-101; James v. Coors Brewing Co., 73 F. Supp. 2d 1250, 1257 (D. Colo. 1999).
Further, prejudgment interest is an element of compensatory damages. “Courts have
long characterized prejudgment interest as an element of [plaintiff’s] complete
compensation.” Johnson v. Continental Airlines Corp., 964 F.2d 1059, 1062 (10th Cir.
1992) (internal quotations and citations omitted). “Prejudgment interest is normally
designed to make the plaintiff whole and is part of the actual damages sought to be
recovered.” Id.
Second, in the initial complaint and in every amended complaint thereafter,6
Plaintiffs sought appropriate damages, interest, costs and attorney fees. See Colorado
Performance Corp. v. Mariposa Associates, 754 P.2d 401 (Colo. App. 1987) (holding

6

The final amended complaint is the Fourth Amended Complaint (ECF No. 548).
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that plaintiff’s request for interest in his complaint was sufficient to permit an award of
prejudgment interest). Further, I find that Plaintiffs’ counsel inadvertently failed to
include this request in its initial Rule 59(e) motion. Thus, I find that the circumstances
are such that I can and should provide the relief Plaintiffs seek under Rule 60(b)(1) and
(6) to include prejudgment interest. Accordingly, in light of the fact that Colorado law
determines prejudgment interest in this diversity case, I find that Plaintiffs are entitled to
prejudgment interest at a rate of 9% per annum. Colo. Rev. Stat. § 13-21-101(1).
V.

CONCLUSION
Based on the foregoing, it is
ORDERED that Plaintiffs’ Renewed Motion for Costs and Correction of Pre-

Judgment Interest Rate (ECF No. 896) is GRANTED to the extent that pursuant to Colo.
Rev. Stat. § 6-1-113(2)(b), costs are taxed in the amount of $387,189.33 against the
Defendants. This amount is calculated as follows:
Requested amount:

$515,257.28

Reduced by:

$ 13,345.27
$
963.20
$100,000.00
$ 13,759.48
$128,067.95

(costs attributable to Mr. Kich’s fees)
(costs attributable to Mr. Kich’s travel)
(disallowed costs for attorney travel expenses)
(disallowed “other costs”)

Total costs awarded: $387,189.33
The motion is also GRANTED to the extent that Plaintiffs are entitled to
prejudgment interest at a rate of 9% per annum. The motion is DENIED in all other
respects. It is
FURTHER ORDERED that Defendant Dillon Companies' Unopposed Motion to

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Amend Amended Final Judgment Pursuant to Fed. R. Civ. P. 60(a) (ECF No. 909) is
GRANTED. In the Final Judgment (ECF No. 812), the Clerk of the Court transcribed
the jury verdict properly with its answer to paragraph 8 as "No." On the contrary, the
Amended Final Judgment (ECF No. 900) transcribed an answer of "Yes" for the same
paragraph 8. The Clerk of the Court shall amend the Final Judgment to correct the
answer to paragraph 8 as "No" for Plaintiffs' claim of strict liability against Defendant
The Kroger Co. as originally provided in the jury verdict. It is
FURTHER ORDERED that the Clerk of the Court shall amend the Final
Judgment consistent with this Order.
Dated: November 13, 2013
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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