Skeberdis et al v. Brill, M.D. et al

Filing 100

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 10/31/2019. (heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID M. SKEBERDIS, et al.,
Plaintiffs,
v.

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CLARK BRILL, M.D., et al.,
Defendants.

Civil Action No. 1:17-cv-00404-PX

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MEMORANDUM OPINION

Pending before the Court is Plaintiffs David and Kara Skeberdis’ Motion to Review the
Clerk’s Order Taxing Costs (ECF No. 98). The motion is fully briefed, and no hearing is
necessary. See Loc. R. 105.6. For the following reasons, the Court grants Plaintiffs’ motion,
vacates the Clerk’s Order, and denies Defendants’ Bill of Costs.
I.

Background
This medical malpractice case was tried for eight days before a jury, from July 30 to

August 9, 2019. ECF Nos. 74–83. Plaintiff David Skeberdis had suffered a MethicillinResistant staph aureus (MRSA) infection following an attempted cervical epidural injection
performed by one of the Defendants, Doctor Clark Brill. ECF No. 98 ¶ 6; ECF No. 92-2 at 3,
12–13. Skeberdis underwent emergency surgery on his neck to evacuate pockets of abscess and
infection, including a ten-level (C4-to-T4) laminectomy, or fusing, of his spinal column. Id. As
a result, and as demonstrated at trial, Skeberdis suffers from permanent chronic pain and is
limited in his daily life activities. ECF No. 98 ¶ 6; ECF No. 92-2 at 4–9, 14, 16.
The central question for the jury at trial was whether the physicians who performed the
epidural injection and cared for Skeberdis immediately following the injection were medically
negligent. ECF No. 98 ¶ 6; ECF No. 90. After nearly a day of deliberations, the jury returned a

verdict in Defendants’ favor. ECF No. 90. On August 23, 2019, Defendants filed a Bill of
Costs, requesting $28,911.40. ECF No. 94. On September 10, 2019, the Clerk of the Court
entered an Order Taxing Costs in the amount of $11,068.08. ECF No. 97. The Clerk excluded
those costs that fell outside those authorized under Rule 54 of the Federal Rules of Civil
Procedure, and also expressly noted that only this Court may review whether costs should be
further reduced or denied on equitable grounds. ECF No. 97 at 2–3. On September 20, 2019,
Skeberdis moved for this Court to perform that very review. ECF No. 98.
II.

Standard of Review
Federal Rule of Civil Procedure 54(d)(1) provides: “Unless a federal statute, these rules,

or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” In this District, the Clerk of Court is entrusted with the taxation of costs in the
first instance. See U.S. District Court for the District of Maryland Guidelines for Bills of Costs §
I.A (2013); see also Fed. R. Civ. P. 54(d) (providing that the “clerk may tax costs on 14 days’
notice”). This Court reviews de novo the Clerk’s taxation of costs. See Fed. R. Civ. P.
54(d)(1); Schwartz v. Rent-A-Wreck of Am., No. PJM 07-1679, 2016 WL 3906581, at *2 (D. Md.
July 14, 2016).
Although “the rule creates the presumption that costs are to be awarded to the prevailing
party,” Cherry v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999), the court retains
“discretion to deny an award of costs,” so long as “good reason” for the denial is articulated.
Ellis v. Grant Thornton LLP, 434 Fed. App’x, 232, 235 (4th Cir. 2011). “Among the factors for
consideration are: (1) misconduct by the prevailing party; (2) the unsuccessful party’s inability to
pay the costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the
prevailing party’s victory; or (5) the closeness and difficulty of the issues decided.” Ellis, 434 F.

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App’x at 235 (citing Cherry, 186 F.3d at 446). In essence, there must “be an element of injustice
in a presumptive cost award.” Id. (quoting Cherry, 186 F.3d at 446).
III.

Discussion
Skeberdis objects to the award of costs, arguing that payment would pose a financial

hardship and that such payment is unjust when considering the issues in his case were close and
difficult. ECF No. 98. The Court analyzes each argument in turn.
A. Inability to pay
If the non-prevailing party is of sufficiently “modest means” such that it would be unjust
or inequitable to enforce Rule 54(d)(1) against him, then the court acts within its discretion to
deny costs to the prevailing party. Cherry, 186 F.3d at 447. However, the non-prevailing party
must provide sufficient documentation establishing his inability to pay costs. Wyne v. Medo
Industries, Inc., 329 F.Supp.2d 584, 588 (D. Md. 2004) (citations omitted).
Skeberdis has shown, through tax returns and other earning information produced during
discovery and at trial, that he has earned no income since 2016. ECF No. 98 ¶ 7; ECF No. 98-1.
He fared little better in the two preceding years. In 2015, he earned just $6,902, and in 2016, a
mere $92. Id. By comparison, the award is nearly double what Skeberdis earned in those years.
Further, testimony at trial from both David and his wife, Kara Skeberdis, confirm that the couple
live modestly and that Skeberdis has little to no ability to work. 1 Cf. Ellis, 434 Fed. App’x at
236 (finding it proper for the district court to rely on evidence of a party’s financial condition
admitted at trial when assessing ability to pay costs). Accordingly, the record amply supports
granting the motion on the grounds of financial hardship. See Levy v. Lexington County, S.C.,

Defendants argue that ECF No. 98-1 only provides Skeberdis’ earning history up to 2016. ECF No. 99 at 5. Not
so. The chart extends until 2018. ECF No. 98-1. Defendants also imply that the Court should ignore the evidence
produced at trial regarding Skeberdis’ permanent, devastating injuries that render it near impossible for Skeberdis to
work. This the Court will not do.
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No. CA 3:03-3093-MBS, 2012 WL 6675051, at *3 (D.S.C. Dec. 20, 2012) (denying $12,898.70
in costs where non-prevailing parties with yearly incomes of $44,598 and $109,647, but with
outstanding debt of $21,000, was found to be of “modest means.”); Musick v. Dorel Juvenile
Grp., Inc., No. 1:11CV00005, 2012 WL 473994, at *1–2 (W.D. Va. Feb. 13, 2012) (denying bill
of costs in products liability personal injury claim after review of plaintiff’s limited financial
means); Broccoli v. Echostar Commc'ns Corp., 229 F.R.D. 506, 517 (D. Md. 2005) (finding the
non-prevailing party, who had an annual income of $3,627.07, was “clearly” of sufficiently
modest means to justify denial of $16,104.40 in costs). On this record, the Court finds
Skeberdis’ limited income renders assessment of costs, now or in the future, inequitable.
B.

Closeness and difficulty of the issues

This Court also finds that the because “the case in question was a close and difficult one”
denial of costs is warranted. Teague v. Bakker, 35 F.3d 978, 996 (4th Cir.1994); see also Ellis,
434 F. App’x at 235. “The closeness of a case is judged not by whether one party clearly
prevails over another, but by the refinement of perception required to recognize, sift through and
organize relevant evidence, and by the difficulty of discerning the law of the case.” Grochowski
v. Sci. Applications Int'l Corp., No. ELH-13-3771, 2017 WL 121743, at *4 (D. Md. Jan. 12,
2017) (quoting White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 732–33 (6th Cir.
1986)). The novelty of the legal issues is certainly of importance in assessing this factor. Ellis,
434 Fed. App’x. at 235. But, so is the factual complexity of the case. See Bennett v. CSX
Transp., Inc., No. 5:10-CV-493-BO, 2015 WL 233223, at *1 (E.D.N.C. Jan. 16, 2015) (“While a
Title VII or FELA claim itself is not particularly novel or complex, the factual issues presented
in this matter were difficult and indeed hotly contested at trial and on appeal.”) (quotations
omitted); see also Musick, 2012 WL 473994, at *2 (factual complexity of the issues supported

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non-taxation of costs). In addition, “[a] case may be characterized as difficult based upon the
length of trial, the number of witnesses, and the amount of evidence submitted to the jury.”
McHugh v. Olympia Entm’t, Inc., 37 F. App’x 730, 743 (6th Cir.), amended on denial of
reh’g, 41 F. App’x 758 (6th Cir. 2002) (citing White, 786 F.2d at 732).
Skeberdis’ medical malpractice case was tried for the better part of two weeks,2 during
which both sides called several lay and expert witnesses—all to help jurors “sift through and
organize relevant evidence.” Cf. Levy v. Lexington Cty., S.C., 2012 WL 6675051, at *2
(“[T]here is no dispute that the issues were close and difficult, so much so that the court was
required to retain the services of an expert to educate the court regarding statistical
methodology.”). The jury had to be educated by relevant medical experts first as to the reasons
for the epidural, next as to the mechanism of injury (or pathogenesis of the MRSA infection),
and finally as to the medical standards of care that Plaintiffs claim the physicians had breached.
This alone required the jury to consider highly specialized expert testimony as well as to review
radiographic and other images and voluminous medical records. In this respect, this case was
factually dense. Cf. Miller By & Through Miller v. Dacus, No. 03-2701 ML/V, 2005 WL
8156761, at *1 (W.D. Tenn. July 7, 2005) (finding case “close and difficult” where a medical
malpractice action involved “many different medical personnel, witnesses, and voluminous
medical records and other documentation” such that “both parties were required to consult with,
prepare and examine numerous expert witnesses”). This Court finds, therefore, that the case was

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That this case proceeded to trial further highlights the closeness and difficulty of the case. Courts have found cases
close and difficult, warranting denial of costs, even when resolved at the summary judgment stage. See, e.g., Latson
v. Clarke, No. 1:16CV00039, 2019 WL 459713, at *2 (W.D. Va. Feb. 6, 2019) (“The closeness of the case . . . [is]
apparent from the size of the summary judgment record and the sheer length of my opinion granting summary
judgment.”); Merritt v. Old Dominion Freight Line, Inc., No. CIV. 6:07-CV-00027, 2009 WL 1362378, at *2 (W.D.
Va. May 15, 2009) (noting that although summary judgment was correctly decided in favor of the defendant, the
decision “was not an easy one” and that the case was “very close” such that, in combination with other factors, the
plaintiff’s request for relief was granted).

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close and difficult, and on this ground alone, the denial of costs is warranted.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ motion to review the Clerks’ order taxing costs

(ECF No. 98) is granted and Defendants’ Bill of Costs is denied in its entirety. A separate order
follows.

10/31/2019

/S/
Paula Xinis
United States District Judge

Date

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