Carnevale et al v. The Boeing Company

Filing 424

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 369 Plaintiff's Motion for Bill of Costs and 406 Revised Bill of Costs, 376 Boeing's Motion for Disallowance and Objections to Plaintiff's Bill of Costs, 400 Boeing's Motion to Compel Resolution of Outstanding Expert Deposition Fee Issues, 383 Plaintiff's Motion to Alter Judgment, and 353 Boeing's Motion for Stay of Execution of Judgment and Waiver of Bond Requirement. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ADRIANA GUZMAN,
Plaintiff,
v.
THE BOEING COMPANY,
Defendant.

)
)
)
)
)
)
)
)

CIVIL ACTION
NO. 13-12615-JGD

MEMORANDUM OF DECISION AND ORDER
ON MISCELLANEOUS POST-TRIAL MOTIONS
February 6, 2019
DEIN, U.S.M.J.
I. INTRODUCTION
On October 26, 2010, American Airlines flight 1640 experienced a rapid decompression
while on route from Miami to Boston. The aircraft returned to Miami and the passengers were
placed on a second aircraft to resume their journey to Boston. The plaintiff, a passenger on the
flight, subsequently filed suit against The Boeing Company (“Boeing”), the manufacturer of the
plane and the defendant in the instant case. Boeing agreed to be held liable for any proximately caused damages.
After a nine day trial on the issue of damages, the jury returned a verdict on April 12,
2018, finding that the plaintiff had suffered $2.2 million in damages, but that she had failed to
mitigate $726,000 of those damages. (See Docket No. 348). On April 19, 2018, this Court
entered judgment for the plaintiff, which included prejudgment interest, for a total judgment of
$2,271,651.60. (See Docket No. 349).

Presently before the court are the following post-trial motions that have been filed by
the parties: (1) plaintiff’s “Bill of Costs” (Docket No. 369) and defendant’s “Motion for Disallowance and Objections to Plaintiff’s Bill of Costs” (Docket No. 376); (2) defendant’s “Motion to
Compel Resolution of Outstanding Expert Deposition Fee Issues” (Docket No. 400); (3) plaintiff’s
“Motion to Alter or Amend Judgment” (Docket No. 383); and (4) defendant’s “Motion for Stay
of Execution of Judgment and Waiver of Bond Requirement” (Docket No. 353). Each motion
will be addressed in turn. Boeing’s motion for a new trial or remittitur under Fed. R. Civ. P. 59
and 50(b) (Docket No. 380) is addressed in a separate opinion.
II. DISCUSSION
A.

Plaintiff’s Bill of Costs and Defendant’s Objections thereto

After the entry of judgment, the plaintiff filed a bill of costs, seeking to tax the
defendant for costs incurred by the plaintiff, pursuant to Fed. R. Civ. P. 54(d). (See Docket No.
369). The defendant filed a “Motion for Disallowance and Objections to Plaintiff’s Bill of Costs,”
objecting to fees for printed or electronically recorded transcripts and fees for witnesses.1, 2

1

In its motion, the defendant also objects to the plaintiff’s (1) fees of service of summons and subpoenas, (2) fees and disbursement for printing, and (3) compensation of interpreters and costs of special
interpretation services. (Docket No. 376-2 at 4, 7, 8). However, at a hearing held on August 6, 2018,
Boeing conceded that the plaintiff’s fees of service of summons and subpoenas were compensable, and
indicated that it did not object to plaintiff’s fees and disbursements for printing. At the hearing Boeing
also reiterated its position that only $1,195 for compensation of interpreters and costs of special
interpretation services was compensable. Subsequent to the hearing, the plaintiff submitted a revised
bill of costs with $1,195 for compensation of interpreters and costs of special interpretation services.
(See Docket No. 406). Accordingly, this court need not address these three line items.
2

Boeing’s motion does not address whether it believes the fees of the clerk are compensable.
However, at the August 6 hearing defense counsel stated that “obviously the fees of the clerk are not
compensable,” but did not elaborate. It is unclear if this was a misstatement. To the extent that
defense counsel intended to object to the taxation of the fees of the clerk, the defendant’s objection is
meritless, as the fees of the clerk are expressly provided for under 28 U.S.C. § 1920(1).

2

(See Docket No. 376). For the reasons discussed below, the defendant’s motion is ALLOWED IN
PART and DENIED IN PART.
Standard of Review
Under Fed. R. Civ. P. 54(d), “costs – other than attorney’s fees – should be allowed to
the prevailing party,” unless a rule of civil procedure, a federal statute, or a court order provide
otherwise. Pursuant to 28 U.S.C. § 1920, the costs that are recoverable under Rule 54(d)
include fees for printed or electronically recorded transcripts necessarily obtained for use in the
case, and fees and disbursements for witnesses. The specific witness fees that are recoverable
are detailed in 28 U.S.C. § 1821.
A court’s ability to deny costs that are eligible for taxation under Rule 54(d) operates
with a “background presumption favoring cost recovery for prevailing parties.” In re Two
Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig. (San Juan Dupont Plaza Hotel
Fire Litig.), 994 F.2d 956, 962 (1st Cir. 1993). Thus, “[w]hen denying costs, a district court must
offer an explanation for doing so unless the basis for denying costs is ‘readily apparent on the
face of the record.’” B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc., 516 F.3d 18, 28 (1st Cir.
2008) (quoting San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d at 963).
Deposition Transcripts
The defendant contests the deposition transcript fees for Dr. Biswas ($1,080), Dr.
Podbros ($1,117.50), Dr. Buza ($1,144.60),3 and the plaintiff ($745, $1,127.70, and $904.40 for

3

In its objection to the plaintiff’s bill of costs, the defendant states that this deposition fee belongs to
an “unidentified” individual, but the plaintiff clarifies in her opposition that this fee corresponds to Dr.
Buza.

3

the plaintiff’s three depositions), arguing that their depositions were not obtained for use at
trial. The defendant also takes issue with the deposition costs associated with two witnesses
who had previously been parties to the present litigation against the defendant. Finally, the
defendant contests the video costs associated with Dr. Marmar’s deposition. 4
Under 28 U.S.C. § 1920, fees for transcripts “necessarily obtained for use in the case,”
are recoverable. Such transcripts are necessarily obtained for use in the case if they are “either
introduced in evidence or used at trial.” Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st
Cir. 1985), cert. denied, 474 U.S. 1021, 106 S. Ct. 571, 88 L. Ed. 2d 556 (1985). Deposition
transcript fees may also be recoverable “if special circumstances warrant it.” Id. However,
using deposition transcripts to merely prepare for trial or in legal memoranda is not sufficient
to impose costs. Haemonetics Corp. v. Fenwal, Inc., 863 F. Supp. 2d 110, 116-17 (D. Mass.
2012); Walters v. President & Fellows of Harvard Coll., 692 F. Supp. 1440, 1443 (D. Mass. 1988)
(“Although these depositions may well have been necessary to the thorough preparation of the
plaintiff's case, she has not demonstrated any special circumstances warranting the recovery of
the associated costs.”).
The plaintiff argues generally that the deposition transcripts of the plaintiff and three
doctors were used to defend against trial objections relating to their deposition testimony, but
fails to cite any specific examples. The record reflects that plaintiff’s counsel read from Dr.

4

The defendant also argued that the expedited cost of Jorge Chinchilla’s deposition transcript should be
disallowed, but the plaintiff has removed this expense from her revised bill of costs. (See Docket No.
406).

4

Buza’s deposition transcript on the second day of trial in response to an objection from defense
counsel. (See Tr. II:128-29). However, the record does not show that the plaintiff used the
other witnesses’ deposition transcripts at trial. The plaintiff has also failed to articulate any
special circumstances warranting the recovery of these fees. Thus, the defendant is only
responsible for paying the deposition transcript costs of Dr. Buza, and shall not be taxed on the
costs of the deposition transcripts for Dr. Biswas, Dr. Podbros, and the plaintiff.
The defendant also argues that the deposition transcript fees for former plaintiffs Cheryl
Carnevale and Gwendolyn Farrell should not be included because those depositions were taken
in connection with their individual claims. The defendant contends that because those claims
were settled before this case went to trial, the former plaintiffs already paid the deposition
costs in fee agreements with their own attorneys and the defendant should not be made
responsible for them. The plaintiff does not address the issue of whether such costs were
previously paid by the former plaintiffs, but contends that the defendant is responsible for
paying them because these depositions were taken with the knowledge that they would be
relevant to everyone’s claims, including the plaintiff’s. The court agrees with the defendant
that it would be unreasonable to “double count” the costs of these depositions by requiring
Boeing to pay for fees that were already paid by former plaintiffs who are no longer parties to
the present litigation and whose cases were settled without obligating Boeing to pay for the
transcripts.
Lastly, the defendant contends that it should not be taxed on the video costs associated
with Dr. Marmar’s deposition. This court agrees. The plaintiff has failed to advance any argument as to why it was necessary to have the deposition videotaped. Dr. Marmar appeared at
5

trial. Accordingly, the costs incurred to videotape Dr. Marmar’s deposition will be disallowed.
See Miller v. Nat’l R.R. Passenger Corp., 157 F.R.D. 145, 145-46 (D. Mass. 1994) (costs of
videotaping deposition disallowed where costs were not necessary and did not save time).
Witness Fees
The defendant argues that it should only be required to pay the per diem attendance
rate for the plaintiff’s witnesses, and not the witnesses’ travel or subsistence costs. “Section
1920(3) permits witness expenses to be taxed within the limits set forth in 28 U.S.C. § 1821.”
Haemonetics Corp., 863 F. Supp. 2d at 117 (citation omitted). Under § 1821, witnesses are
entitled to reasonable travel expenses, a flat fee of $40 per day of trial attendance, and a subsistence allowance for witnesses who are required to stay overnight in the area to participate in
the trial. See Greater N.Y. Mut. Ins. Co. v. Lavelle Indus. Inc., No. CIV.A. 13-10164-MBB, 2017
WL 1496914, at *3 (D. Mass. Apr. 25, 2017). “A witness's compensation is not limited solely to
days the witness testifies, ‘but may also be awarded for each day the witness necessarily
attends trial [and] time spent during delays and temporary adjournments.’” Haemonetics Corp.,
863 F. Supp. 2d at 117 (emphasis and alteration in original) (quoting Soberay Mach. & Equip.
Co. v. MRF Ltd., 181 F.3d 759, 772 (6th Cir. 1999)).
First, the defendant contends that it should not be required to pay any of the travel
costs incurred by the plaintiff’s witnesses because such costs were incurred as a result of the
plaintiff’s decision to bring suit in Massachusetts rather than Florida, which would have been
closer for the witnesses coming from Costa Rica. This court finds the defendant’s reasoning
unpersuasive. Wherever a plaintiff chooses to bring suit, her witnesses will necessarily incur
some expense to come to the courthouse to testify. The choice of venue only affects the
6

amount of travel required, not whether travel is required. For example, a witness who lives
locally would still be entitled to the cost of driving to the courthouse to testify. See 28 U.S.C.
§ 1821. The defendant has provided no explanation, let alone case law, in support of the
proposition that a plaintiff should receive no compensation for witness travel costs – not even
nominal compensation – for bringing suit in a venue that the defendant believes is less
convenient for the witnesses. Further, the defendant fails to acknowledge that the two
percipient witnesses who resided in Massachusetts at the time of trial would have incurred
greater travel expenses if the trial had been held in Florida. In either scenario, the witnesses
from Costa Rica would incur substantial expenses traveling to the United States. Thus, the
defendant is not excused from paying for witnesses’ travel expenses merely because the
plaintiff brought suit in Massachusetts.
Second, the defendant contends that it should not be required to pay the subsistence
costs of the three witnesses who traveled from out-of-state because they did not provide the
defendant with receipts from their stay. Section 1821 provides that “[a] subsistence allowance
shall be paid to a witness when an overnight stay is required at the place of attendance because
such place is so far removed from the residence of such witness as to prohibit return thereto
from day to day.” 28 U.S.C. § 1821. As to the amount of such allowance, “the subsistence cost
for a witness cannot exceed the allowable maximum per diem rate for official travel by federal
government employees in the area of attendance.” Bucksar v. Mayo, No. CIV.A. 11-10134-RBC,
2013 WL 1320445, at *2 n.4 (D. Mass. Mar. 28, 2013); see 28 U.S.C. § 1821(d)(2) and (d)(3).5

5

In April 2018, the per diem rate in Boston was $267 for lodging and $69 for meals and incidentals. See
FY 2018 Per Diem Rates for Massachusetts, https://www.gsa.gov/travel/plan-book/per-diem-rates/perdiem-rates-lookup/?action=perdiems_report&state=MA&fiscal_year=2018&zip=&city=Boston. The

7

However, in order to recover such costs, the plaintiff should provide receipts or other evidence
of the expenses incurred. See Osorio v. One World Techs., Inc., 834 F. Supp. 2d 20, 24 (D. Mass.
2011); Sharp v. Hylas Yachts, Inc., No. CV 11-11814-JCB, 2016 WL 10654435, at *3 (D. Mass.
June 14, 2016). Accordingly, the plaintiff shall provide the defendant with lodging and meal
receipts, and may recover costs up to the government per diem rate. Any subsistence costs
claimed for which the plaintiff does not provide receipts will not be recoverable.
Lastly, the defendant contends that it should not be responsible for the portion of Dr.
Cambronero’s and Pabla Guzman’s subsistence costs relating to their depositions before trial.
At a pre-trial hearing, defense counsel requested that the plaintiff’s foreign witnesses be made
available forty-eight hours before their trial testimony so that defense counsel could depose
them. (See Docket No. 277; Docket No. 284 at 34). Accordingly, these witnesses arrived in
Boston ahead of their testimony in order to be deposed forty-eight hours beforehand. The
parties disagree as to whether defense counsel had the opportunity to depose these witnesses
during discovery, and which party bears responsibility for the failure to do so. Primarily on this
basis, the parties dispute whether the defendant must pay subsistence costs for the days of
trial wherein these witnesses were deposed. This court concludes that defense counsel’s
request necessitated these witnesses’ presence at trial prior to their actual testimony and that,
as a general matter, it is not unreasonable to seek four days of subsistence fees for Dr.
Cambronero and three days of subsistence fees for Pabla Guzman, who both travelled from

plaintiff cites in her brief that the allowable subsistence allowance in Boston is $238 per day. (See
Docket No. 405 at 6). This number appears to be based on the Taxation of Costs guide provided by the
District of Massachusetts, which has a listed drafting date of December 28, 2000.

8

Costa Rica for two days of trial.6 Accordingly, the defendant’s motion as to witness fees is
DENIED.
In summary, the defendant’s “Motion for Disallowance and Objections to Plaintiff’s Bill
of Costs” (Docket No. 376) is ALLOWED IN PART and DENIED IN PART. Specifically, the defendant’s motion is ALLOWED with respect to the deposition transcript fees of Dr. Biswas, Dr.
Podbros, and the plaintiff. The defendant’s motion is also ALLOWED with respect to the
deposition costs associated with Cheryl Carnevale and Gwendolyn Farrell and the video costs
associated with Dr. Marmar’s deposition. The plaintiff shall provide the defendant with lodging
and meal receipts to recover subsistence costs. The defendant’s motion is otherwise DENIED
and the plaintiff’s revised bill of costs (Docket No. 406) is ALLOWED as to the remaining costs.
B.

Defendant’s Motion to Compel Resolution of Outstanding
Expert Deposition Fee Issues

Boeing has also filed a “Motion to Compel Resolution of Outstanding Expert Deposition
Fee Issues” (Docket No. 400). The defendant argues that prior to the taking of expert
depositions in this case, the parties entered into an agreement as to expert deposition fees.
One of plaintiff’s experts, Dr. Biswas, purported to charge defense counsel for fees outside of
the fee agreement, which defense counsel refused to pay. On day two of trial, plaintiff’s
counsel indicated that Dr. Biswas was refusing to testify unless Boeing paid the outstanding
fees. (Tr. II:139-40, 143). This court instructed Boeing to pay Dr. Biswas the outstanding fees so
that she would appear for trial, but indicated that the underlying issue of which party was

6

Pabla Guzman only testified on one day of trial, but the plaintiff sought attendance fees for two days
of trial. The defendant has not contested this.

9

responsible for payment would be resolved after trial if necessary. (Id. 144). Boeing now asks
that this court resolve the issue in its favor. Additionally, Boeing asks this court to order the
plaintiff to pay expert deposition fees for Boeing’s experts. As discussed below, Boeing’s
motion is ALLOWED IN PART and DENIED IN PART.
The defendant contends that the parties entered into an expert deposition fee
agreement as to the payment of expert deposition costs. The defendant has produced an email
from defense counsel listing the proposed terms of this agreement. The proposed agreement
provided that the deposing party would pay a reasonable hourly rate to the expert being
deposed for the time spent traveling to and from the deposition, attending the deposition, and
gathering materials responsive to the subpoena, but would not pay for time spent preparing for
the deposition or reviewing the deposition transcript. The email, written from defense counsel
to plaintiff’s counsel, also indicates that “[t]o the extent that you disagree with our position, we
should have a brief call Monday and then bring this to the court’s attention.” (Docket No. 401,
Ex. 5). As far as this court is aware, neither party subsequently contacted the court about being
unable to reach such an agreement on expert deposition fees, and the plaintiff never
challenged these terms before the depositions went forward. In her opposition, the plaintiff
does not address whether the parties in fact reached such an agreement. (See Docket No. 403).
In a subsequent status report filed with the court, the plaintiff states that (1) no such
agreement existed prior to defense counsel’s email; (2) the parties did not have an agreement
“that differs in any way from the text and the spirit of [Fed. R. Civ. P.] 26(b)(4)(E)(i)”; and (3) the
parties did not specifically enter into an agreement as to Dr. Biswas’s fees because plaintiff’s
counsel “was not and is not an agent for Dr. Biswas.” (Docket No. 408 at 1, 3). None of these
10

arguments squarely addresses whether plaintiff’s counsel did in fact agree to the terms set
forth in defense counsel’s email. Because the evidence indicates that an expert deposition fee
agreement was proposed, the defendant asserts that the proposal was accepted, the plaintiff
gingerly avoids denying that plaintiff’s counsel assented to this agreement, the defendant
apparently charged the plaintiff in accordance with the terms of the email, and there is no
indication that the parties were unable to reach an agreement such that they brought the issue
to the court’s attention, this court finds that the parties did in fact enter into such an
agreement.
i.

Dr. Biswas’s Deposition Fees

On the basis of the parties’ expert deposition fees agreement, the defendant contests
five line items that Dr. Biswas purported to charge to defense counsel: (1) $4,800 for “Retrieving and Organizing Files asked for by opposing counsel”; (2) $2,400 for “Responding, organizing
correspondence and billing asked for by opposing counsel”; (3) $2,400 for “Scheduling,
Cancelling the 11/27 date and Rescheduling deposition”; (4) $900 for “Billing correspondence”;
and (5) $1,500 for “Reading and signing Deposition dated 12/11/17.” (See Docket No. 401, Exs.
7, 9). The court will address each item in turn.
Fees for Organizing Items for Opposing Counsel
Dr. Biswas charged Boeing for eight hours of time spent “Retrieving and Organizing Files
asked for by opposing counsel” and four hours of time spent “Responding, organizing correspondence and billing asked for by opposing counsel.” (See Docket No. 401, Ex. 7). The total
amount charged for these activities was $7,200. (See id.). The parties’ expert deposition fee
agreement provided that the deposing party would pay for time spent gathering materials
11

responsive to the subpoena. Dr. Biswas produced five exhibits in response to the subpoena,
which consisted of ninety-eight pages of correspondence between the plaintiff and Dr. Biswas,
a thumb drive of files that the plaintiff provided to Dr. Biswas for review, and three articles.
(See Docket No. 401, Ex. 8). The defendant argues that Dr. Biswas could not have possibly
spent twelve hours gathering these materials. Rather, the defendant argues, Dr. Biswas
charged Boeing for time spent reviewing materials in preparation for her deposition, which was
expressly not covered by the parties’ expert deposition fee agreement. The plaintiff asserts
that Dr. Biswas spent all of this time gathering responsive materials, noting that Boeing’s
subpoena included twenty-two requests for documents and other items.
Of the twelve hours Dr. Biswas billed for organizing items in preparation for her
deposition, it is unclear how much time was spent gathering responsive materials and how
much time was spent otherwise preparing for the deposition. In comparison with the other
experts, twelve hours spent responding to the document request appears quite excessive. By
comparison, Boeing represents that it paid the plaintiff’s other experts $3,880 (Dr. Buza),
$6,995 (Dr. Podbros), and $2,100 (Neville Lee) respectively for the entirety of their deposition
costs – a fraction of the amount that Dr. Biswas requested for simply gathering responsive
materials. (See Docket No. 400 at 6). Thus, the defendant should not be responsible for
payment of all twelve hours billed. Boeing contends that a reasonable fee for gathering
responsive materials would be $600. Without more specific information as to how Dr. Biswas
managed her preparation time, this court finds that Boeing’s proposed fee is reasonable.
Accordingly, Boeing is not responsible for $6,600 of the $7,200 originally billed under these line
items.
12

Fee for Previously Proposed Deposition Date
Dr. Biswas charged Boeing $2,400 for “Scheduling, Cancelling the 11/27 date and
Rescheduling deposition.” (Docket No. 401, Ex. 7). During discovery, defense counsel provided
November 27, 2017 as a proposed deposition date for Dr. Biswas in an email to plaintiff’s
counsel, along with other proposed deposition dates. (Docket No. 401, Ex. 1). The email asked
plaintiff’s counsel to check with their experts on whether the proposed dates would work, but
indicated that some dates may need to be moved if defense counsel did not receive plaintiff’s
supplementary discovery responses shortly. (Id.). In subsequent emails, it became clear that
the proposed deposition date for another expert, Dr. Buza, would not work. (See Docket No.
401, Exs. 2, 3). Defense counsel indicated that they would like to maintain the order in which
they chose to depose plaintiff’s experts, which meant that the deposition dates of experts they
wanted to depose after Dr. Buza would need to be pushed back. (Docket No. 401, Ex. 3). In
light of this change, on November 10, 2017, plaintiff’s counsel sent an email stating that they
would try to send defense counsel a list of new proposed deposition dates for plaintiff’s
experts. (Docket No. 401, Ex. 4). Defense counsel separately received a letter from Dr. Biswas
dated November 9, 2017, stating that she had received notice that defense counsel would like
to depose her. (Id.).
No evidence has been provided to indicate that defense counsel ever noticed Dr. Biswas
for a deposition on November 27, 2017. Rather, the record indicates that this was a proposed
deposition date, subject to change, and that at least by November 10, 2017 it was clear that
this deposition date would be changed. Accordingly, Dr. Biswas’s charge for “cancelling” the

13

proposed deposition on 11/27 is unreasonable, and that cost should not be borne by the
defendant.
Fee for Billing Correspondence and for Reading and Signing Deposition
Dr. Biswas purported to charge Boeing an additional $900 for the time she spent writing
a letter in response to Boeing’s letter contesting portions of her bill. (Docket No. 401, Ex. 9).
This fee was not covered under the parties’ expert deposition fee agreement, nor is it reasonable. Thus, the defendant is not responsible for this charge. Similarly, because the agreement
provided that the deposing party was not responsible for fees relating to reviewing the deposition transcript, the defendant was not responsible for paying Dr. Biswas’s $1,500 fee for
“Reading and signing Deposition dated 12/11/17.”
In summary, Boeing’s motion to compel on the issue of Dr. Biswas’s deposition fees is
ALLOWED.
ii.

Defendant’s Experts’ Deposition Fees

The defendant also contends that the plaintiff has failed to pay expert deposition fees
for the defendant’s experts. Specifically, the defendant asserts that Dr. Barocci, Dr. Hastings,
and Jorge Chinchilla have yet to be paid. In her opposition to Boeing’s motion to compel, the
plaintiff indicates that none of these experts provided the plaintiff with an itemized list of their
deposition costs. Rather, they only provided the plaintiff with information as to the total
amount being charged. At a hearing held on August 6, 2018 regarding the parties’ post-trial
motions, this court instructed the defendant to have these experts provide the plaintiff with
itemized bills. Additionally, this court instructed the plaintiff to submit a status report after the
hearing indicating whether the defendant’s experts had in fact followed up with an itemized list
14

of their deposition costs. The plaintiff subsequently filed a status report, but the report focuses
entirely on the issue of Dr. Biswas’s deposition fees, and does not address whether the plaintiff
received itemized bills from the defendant’s experts. Thus, this court assumes that the issue
was resolved and that itemized bills were produced. To the extent the plaintiff has not already
done so, the bills should be paid. Boeing’s motion to compel the payment of these fees is
ALLOWED.
C.

Plaintiff’s Motion to Alter Judgment

After the conclusion of the trial, the plaintiff filed a “Motion to Alter or Amend
Judgment” (Docket No. 383). In light of the plaintiff’s subsequent “Notice of Withdrawal of her
Motion to Amend Judgment” (Docket No. 407), this motion is MOOT.
D.

Defendant’s Motion for Stay of Execution of Judgment
and Waiver of Bond Requirement

The defendant has moved for a stay of execution of judgment and a waiver of any bond
requirement under Fed. R. Civ. P. 62(b) and (d).7 First, the defendant requests a stay of the
execution of judgment pending the disposition of its motion under Rule 59. Because this court
has already ruled on the defendant’s Rule 59 motion in a separate order, the request for a stay
pending the disposition of the motion is MOOT.

7

At the time of the defendant’s motion, Rule 62(d) was the subsection that permitted an appellant to
obtain a stay of execution pending disposition of its appeal by posting a bond. After the defendant filed
this motion, the Federal Rules of Civil Procedure were revised. Effective December 1, 2018, Rule 62 has
been revised such that subsection (d) corresponds to staying an injunction pending the disposition of an
appeal. Subsection (b) is now the relevant portion of the rule pertaining to all stays by bond. Nothing in
the revisions to Rule 62 substantively changes this court’s analysis.

15

Second, the defendant requests that the court stay the execution of judgment during
the pendency of its appeal without requiring the defendant to post a bond. Pursuant to Fed. R.
Civ. P. 62, an appellant may obtain a stay of execution pending disposition of its appeal by
posting a bond. Under Local Rule 62.2, the bond is prescribed as “the amount of the judgment
plus 10% of the amount to cover interest and any award of damages for delay plus $500 to
cover costs, unless the court directs otherwise.” “The bond requirement is intended to protect
the interest of the creditor’s right under judgment during the pendency of the appeal.”
Acevado-Garcia v. Vera-Monroig, 296 F.3d 13, 17 (1st. Cir. 2002) (citation omitted). A bond
may not be required if “(1) the defendant’s ability to pay is so plain that the posting of a bond
would be a waste of money; or (2) the bond would put the defendant’s other creditors in undue
jeopardy.” Id. (citation omitted). The defendant relies on the former rationale to argue that no
bond should be required here. The plaintiff contends that a number of recent Boeing plane
crashes potentially jeopardizes the defendant’s ability to pay.
In support of its motion, the defendant has provided a copy of its quarterly report, filed
with the Securities and Exchange Commission, which lists Boeing’s earnings for the first quarter
of 2018. The report reflects that Boeing’s net earnings exceeded $2 billion, indicating that the
defendant would readily be able to pay the judgment if affirmed on appeal. The plaintiff’s
argument that four other recent crashes of Boeing planes may jeopardize Boeing’s future
solvency is “too speculative to merit consideration.” In re Oil Spill By The “Amoco Cadiz” Off
the Coast of France On Mar. 16, 1978, 744 F. Supp. 848, 850 n.2 (N.D. Ill. 1990); see Exxon Corp.
v. Esso Worker's Union, Inc., 963 F. Supp. 58, 60 (D. Mass. 1997) (no bond required where
defendant demonstrated “clear ability to satisfy the judgment if affirmed on appeal”).
16

Accordingly, the defendant’s motion to stay the execution of judgment pending its appeal and
to waive the bond requirement is ALLOWED.
III. CONCLUSION
For the reasons discussed, the motions presently before the court are ruled on as
follows. The defendant’s “Motion for Disallowance and Objections to Plaintiff’s Bill of Costs”
(Docket No. 376) is ALLOWED IN PART and DENIED IN PART. Specifically, the defendant’s
motion is ALLOWED with respect to the deposition transcript fees of Dr. Biswas, Dr. Podbros,
and the plaintiff, the deposition costs associated with Cheryl Carnevale and Gwendolyn Farrell,
and the video costs associated with Dr. Marmar’s deposition. The plaintiff shall provide the
defendant with lodging and meal receipts to recover subsistence costs. The defendant’s
motion is otherwise DENIED and the plaintiff’s revised bill of costs (Docket No. 406) is ALLOWED
as to the remaining costs. The defendant’s “Motion to Compel Resolution of Outstanding
Expert Deposition Fee Issues” (Docket No. 400) is ALLOWED. The plaintiff’s “Motion to Alter or
Amend Judgment” (Docket No. 383) is MOOT. Finally, the defendant’s “Motion for Stay of
Execution of Judgment and Waiver of Bond Requirement” (Docket No. 353) is MOOT as to the
request for a stay pending the court's ruling on the Rule 59 motion, ALLOWED as to the request
for a stay pending the defendant's appeal, and ALLOWED as to the waiver of the bond
requirement.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

17