Cowden v. BNSF Railway Company

Filing 263

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff Kevin D. Cowden's Motion for Bill of Costs [ECF No. 252 ] is GRANTED, in part, and DENIED, in part. Plaintiff shall recover a total of $7,870.65, representing (1) $350.00 i n fees of the Clerk, (2) $3,145.93 in fees of the Court Reporter for transcripts used in the case, (3) $2,540.97 in fees for witnesses, and (4) $1,833.75 in fees for exemplification and copies of papers, including video editing of de positions played at trial. The Clerk of Court shall tax costs in favor of Plaintiff Kevin D. Cowden, and against Defendant BNSF Railway Company, in the amount of $7,870.65. Signed by District Judge E. Richard Webber on January 3, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEVIN D. COWDEN,
Plaintiff,
vs.
BNSF RAILWAY COMPANY,
Defendant.

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Case No. 4:08CV01534 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Kevin D. Cowden’s Motion for Bill of Costs
[ECF No. 252].
I.

BACKGROUND
This case arises out of injuries Plaintiff sustained while working as a conductor on a

locomotive for Defendant BNSF Railway Company. On November 8, 2013, a jury returned a verdict
in favor of Plaintiff in the amount of $1,671,253.90. The Court subsequently entered judgment on
the verdict. On December 3, 2013, Plaintiff filed a Motion for Bill of Costs [ECF No. 252], asking
the Court to tax Defendant $18,597.51. Defendant responded on December 11, 2013, objecting to
various amounts claimed by Plaintiff. [ECF No. 255]. Subsequently, Plaintiff filed his Reply
Memorandum in Support of Plaintiff’s Motion to Assess Costs Against Defendant [ECF No. 260].
In this filing, Plaintiff waived $8,749.66 of the sum originally sought, rendering many of Defendant’s
objections moot. Plaintiff now claims $9,847.35 in costs, representing fees of the Clerk, fees of the
Court Reporter, fees for witnesses, and fees for exemplification and copies of papers. For the sake
of clarity, the Court limits its discussion to amounts comprising the $9,847.35 currently sought by
Plaintiff; unless otherwise stated, the Court will not discuss waived amounts.

II.

DISCUSSION
Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs--other than attorney’s

fees--should be allowed to the prevailing party.” See also In re Derailment Cases, 417 F.3d 840, 844
(8th Cir. 2005) (“A prevailing party is presumptively entitled to recover all of its costs.”). Pursuant
to 28 U.S.C. § 1920, the Court may tax costs for:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(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.
The Court may not award costs other than those authorized by § 1920, because this section “imposes
rigid controls on cost-shifting in federal courts[.]” Brisco-Wade v. Carnahan, 297 F.3d 781, 782
(8th Cir. 2002) (internal quotations omitted). Upon objection by the opposing party as to authorized
costs, however, the Court may exercise its discretion to grant or deny costs. Pershern v. Fiatallis
North America, Inc., 834 F.2d 136, 140 (8th Cir. 1987).
In response to Plaintiff’s Motion, Defendant has a number of Objections. Specifically,
Defendant objects to taxation of certain fees of the Court Reporter for transcripts, witness fees, and
fees for exemplification and the costs of making copies. For reasons discussed infra, the Court will
tax Defendant $7,870.65 in costs.
A.

Fees of the Clerk

Plaintiff incurred $350.00 in fees of the Clerk. Defendant does not object to taxation of this
amount. The Court will therefore tax Defendant $350.00.

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B.

Fees of the Court Reporter for Transcripts1

Plaintiff seeks to recover $4,808.382 in costs for transcripts of various depositions. In
determining whether to award the costs of a deposition, “the underlying inquiry is whether the
depositions reasonably seemed necessary at the time they were taken.” Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 363 (8th Cir. 1997) (internal quotations omitted). While deposition costs are
unrecoverable if taken solely for discovery or investigative purposes, Ryther v. KARE 11, 864 F.
Supp. 1525, 1354 (D. Minn. 1994), “if the depositions were actually introduced in evidence or used
at trial for impeachment purposes, then it is proper to conclude they were necessarily obtained for
use in the case.” Frazier v. IBP, Inc., No. C97-0023, 1999 WL 33655745, at *10 (E.D. Mo. Feb.
2, 1999). For reasons discuss infra, the Court will award $3,145.93 in costs in this category.
1.

Deposition of Plaintiff Totaling $306.00

Plaintiff seeks to recover $306.00, representing $303.00 for the cost of Plaintiff’s deposition
and $3.00 for corresponding exhibits. Defendant argues, because the deposition was taken for
discovery purposes, it was “merely useful” and not necessary for use in the case. Plaintiff responds
he anticipated Defendant would use his deposition for impeachment at trial, and it was therefore
reasonably necessary for him to possess a copy.
The Court will tax this cost to Defendant. Defendant relies on Hansen v. Bradley, 114 F.
Supp. 382 (D.C. Md. 1953), but this case is unpersuasive. In Hansen, a District of Maryland case
from 1953, the plaintiff prevailed at trial and sought recovery of the cost for her own deposition. Id.

1

With regarding to deposition transcripts, Plaintiff has waived costs of shipping,
accelerated transcripts, e-transcripts, exhibits archives, condensed disks, duplicate copies of
transcripts, digital transcripts, and condensed transcripts. [ECF No. 260]. The Court will not
include costs for these items in its discussion.
2

Due to clerical errors discussed infra, this amount is slightly higher than the sum listed
by Plaintiff.
3

at 385. The court denied this request, because the plaintiff testified before the jury, and her
deposition was neither admissible nor offered at trial. Id. Likewise, the remaining cases cited by
Defendant merely stand for the proposition that parties may not recover costs for depositions used
solely for exploratory purposes. See, e.g., Echostar Satellite Corp. v. Advanced Commc’ns Corp.,
902 F. Supp. 213, 217 (D. Colo. 1995); Crandall v. City and Cnty. of Denver, 594 F. Supp. 2d 1245,
1248 (D. Colo. 2009).
Here, however, Plaintiff’s deposition was not merely investigative. Instead, Plaintiff
correctly predicted Defendant would use his deposition for impeachment purposes. Thus, it
reasonably necessary for Plaintiff to possess a copy of the deposition. The cost of Plaintiff’s
deposition, $303.00, will be taxed to Defendant.
Furthermore, the Court will tax Defendant an additional $3.00, representing the cost of copies
of exhibits. As Plaintiff notes, Defendant has failed to cite any case supporting its blanket
proposition that copies of deposition exhibits constitute unrecoverable costs. Rather, Defendant cites
cases merely establishing parties may not recover costs of exhibits made for the convenience of
counsel. See, e.g., Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., No. 4:06CV655 RWS, 2010
WL 1935998 (E.D. Mo. May 10, 2010), Clark v. Baka, No. 4:07CV477 DPM, 2011 WL 2881710
(E.D. Ark. July 19, 2011). Moreover, Plaintiff correctly states authenticated deposition exhibits are
necessary for use in summary judgment pleadings, which require support with admissible evidence,
see Fed. R. Civ. P. 56(c), and costs incurred for use in summary judgment proceedings are
considered “necessarily obtained” within the meaning of 28 U.S.C. § 1920. See Dunn v. Nexgrill
Indus., Inc., No. 4:07CV01875 JCH, 2011 WL 1060943, at *2 (E.D. Mo. Mar. 21, 2011) (finding
deposition costs necessary where parties cited depositions in briefing motion for summary
judgment); Cengr v. Fusibond Piping Systs., Inc., 135 F.3d 445, 455 (7th Cir. 1998) (holding

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deposition costs “reasonably necessary” where obtained to support summary judgment motion).
Therefore, the Court concludes costs for copies of deposition exhibits are recoverable to the same
extent as their corresponding depositions.3
Accordingly, the Court will tax Defendant $306.00 for costs associated with Plaintiff’s
deposition.
2.

Deposition of Terry Cordray Totaling $97.50

Plaintiff seeks to recover $97.50, representing $78.75 for the deposition of Terry Cordray and
$18.75 for corresponding exhibits. Defendant contends, because Plaintiff did not call Cordray as a
witness at trial, these costs are not taxable under 28 U.S.C. § 1920. Plaintiff counters, because
Defendant took Cordray’s deposition, Plaintiff reasonably needed to obtain a copy.
The Court finds Plaintiff reasonably needed a copy of Cordray’s deposition. After Defendant
took Cordray’s deposition, Plaintiff needed to learn its contents. See United Steel, Paper & Forestry,
Rubber, Mgf., Engery, Allied Indust. & Serv. Workers Int’l Union v. Trimas Corp., No. 1:06CV32
TS, 2007 WL 1295820, at *2 (N.D. Ind. Apr. 30, 2007) (“After the Defendant determined that it was
necessary to depose the Plaintiff’s expert, the Plaintiff was justified in obtaining a transcript of that
deposition.”). Thus, the Court will tax $97.50 to Defendant for costs related to Cordray’s deposition.
3.

Depositions and Supplemental Depositions of Rebecca Summary and
Alan Blackwell Totaling $660.08

Plaintiff to seeks to recover $660.08, representing (1) $98.00 for the deposition transcript of
Rebecca Summary, (2) $61.50 for Summary’s supplemental deposition transcript, including $5.50
for copies of exhibits, (3) $182.30 for the deposition transcript of Alan Blackwell, including $18.50

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For this reason, throughout the remainder of this Memorandum and Order, the Court will
not separately discuss the costs of exhibits and their corresponding depositions, unless Defendant
raises a different basis for objecting.
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for copies of exhibits, (4) $166.25 for Blackwell’s supplemental deposition transcript, and (5)
$152.03 for Blackwell’s second supplemental deposition. Defendant objects to taxing the costs of
these transcripts on the bases they were not used at trial, and Plaintiff has failed to satisfy his burden
of proving they were necessarily obtained for use in the case.
The Court will tax $660.08 to Defendant. The relevant inquiry is not whether the parties
used the depositions at trial, but, rather, “whether the depositions reasonably seemed necessary at
the time they were taken.” Zotos, 121 F.3d at 363; Smith v. Tenet Healthsystem SL, Inc., 436 F.3d
879, 889 (8th Cir. 2006) (“Even if a deposition is not introduced at trial, a district court has
discretion to award costs if the deposition was necessarily obtained for use in a case and was not
purely investigative.”). Because Defendant took the depositions of these experts, Plaintiff reasonably
needed to obtain copies. Trimas Corp., 2007 WL 1295820, at *2. Moreover, these witnesses
testified at trial, and Plaintiff could have reasonably anticipated Defendant would use their
depositions for impeachment purposes. Thus, the Court will tax Defendant $660.08 for these costs.
4.

Deposition of Joseph Thornburg Totaling $1,243.15

Plaintiff’s Motion states he incurred $1,420.65 in expenses related to the deposition of Joseph
Thornburg, Defendant’s corporate representative. [ECF No. 251-1 at 1].

Upon receiving

Defendant’s Objections, Plaintiff lowered the amount sought to $1,145.65, waiving “the costs of
DVD copies ($150), courier ($20), Etranscript ($97.50), and transcript/archive ($7.50).” [ECF No.
260 at 8 n. 5]. However, the invoices from Thornburg’s depositions indicate Plaintiff did not incur
costs for E-transcripts. Rather, Plaintiff appears to have transposed the $0.00 value for E-transcripts
with the $97.50 cost associated with the attendance of a court reporter. [ECF No. 251-3 at 6].
Accounting for this clerical error, the Court will include the $97.50 in the amount sought by Plaintiff.

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Thus, the Court will view Plaintiff’s Motion as seeking $1,243.15, representing (1) $605.00 in video
deposition costs and (2) $638.15 in stenographic deposition costs.
Defendant objects, arguing recent case law in this Court establishes Plaintiff cannot recover
both stenographic transcript costs and video deposition costs. Defendant contends the Court should
not tax the costs of Thornburg’s video deposition, because Plaintiff has failed to demonstrate a
legitimate need for such deposition.
The parties have cited various cases addressing whether § 1920 allows taxation of both
stenographic and videographic deposition costs; courts are clearly split on this issue, and the Eighth
Circuit has yet to provide a resolution. The Court must therefore address this matter of statutory
construction, the first step of which “is to determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997). Under 28 U.S.C. § 1920(2), the prevailing party may recover “[f]ees for
printed or electronically recorded transcripts necessarily obtained for use in the case.” In Lift Truck
Lease & Service, Inc. v. Nissan Forklift Corporation, North America, the Honorable Charles A.
Shaw noted, “In several decisions, this Court has held the plain language of the statute is clear, and
use of the disjunctive ‘or’ indicates a party cannot recover the cost of both a stenographic and video
of the same deposition.” 4:12CV153 CAS, 2013 WL 6331578, at *2 (E.D. Mo. Dec. 5, 2013)
(finding Ҥ 1920(2) precludes the recovery of the cost of both a stenographic transcript and video
of the same deposition”); see also MEMC Elec. Materials, Inc. v. Sunlight Grp., Inc., No.
4:08CV535 FRB, 2012 WL 918743, at *2 (E.D. Mo. Mar. 19, 2012) (“[I]t would be contrary to §
1920's plain language to allow MEMC to recover costs for both stenographic and video costs for
[certain] depositions.”); U.S. Fid. & Guar. Co., 2010 WL 1935998, at *2 (“The ordinary usage of
the word ‘or’ is disjunctive, indicating an alternative. . . . [I]t would be contrary to the plain language

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of § 1920 to allow Defendants to recover costs for both stenographic transcripts and video costs for
the same depositions.”).
Plaintiff attempts to re-characterize Lift Truck as allowing taxation of both types of costs in
special circumstances. [ECF No. 260]. This is simply untrue. Granted, the Court in Lift Truck did
state video depositions are necessarily obtained where “special circumstances [make] it necessary
for the jury to actually see and hear . . . deposition testimony on video[.]” 2013 WL 6331578, at *2.
However, the Court made that statement only in addressing “which costs to reject”; at that point, the
Court had already found Ҥ 1920(2) precludes the recovery of the cost of both a stenographic
transcript and video of the same deposition.” Id.
That said, contrary case law exists. The Court has examined such cases and found them less
persuasive than the cogent reasoning of those cited supra. For example, Plaintiff cites several outof-circuit cases allowing for taxation of both stenographic and videographic costs. See BDT Prods.,
Inc. v. Lexmark Intern., Inc., 405 F.3d 415, 420 (6th Cir. 2005), abrogated on other grounds by
Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997 (2012); Tilton v. Capital Cities/ABC, 115 F.3d
1471, 1478 (10th Cir. 1997) (“[T]he district court did not abuse its discretion in taxing the costs of
both the preparation and transcription of the seven videotaped depositions.”); Morrison v. Reichhold
Chems., Inc., 97 F.3d 460, 465 (11th Cir. 1996) (“[W]hen a party notices a deposition to be recorded
by . . . both stenographic and nonstenographic means, and no objection is raised at that time by the
other party . . . it is appropriate under § 1920 to award the cost of conducting the deposition in the
manner noticed.”). All these cases, however, issued before 2008, when § 1920(2) stated the courts
could tax “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily
obtained for use in the case[.]” This language, which lacks any mention of electronically recorded
transcripts, stands in stark contrast to the statute’s current reading, which allows taxation of “[f]ees

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for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C.
§ 1920(2) (emphasis added).
Additionally, the Court is unpersuaded by Plaintiff’s citation to Clark v. Baka,
No.4:07CV477 DPM, 2011 WL 2881710 (E.D. Ark. July 19, 2011). Admittedly, in Baka, the
district court taxed both stenographic and videographic deposition costs to the nonprevailing party
under the current version of § 1920(2). Id. at *3. However, the court simply acknowledged the lack
of consensus on this issue and awarded both costs for those video depositions used at trial. Id. In
other words, the court did not engage in the observative analysis demonstrated in Lift Truck, Sunlight
Group, and U.S. Fidelity & Guaranty Company. Likewise, these cases are more persuasive than
contrary case law previously issued by this Court. See Rohrbough v. Hall, No. 4:07CV00996 ERW,
2010 WL 4940954 (E.D. Mo. Nov. 30, 2010); Farnsworth v. Covidien, Inc., No. 4:08CV01689
ERW, 2010 WL 2160900 (E.D. Mo. May 28, 2010).4
Therefore, the Court finds § 1920(2) precludes recovery of both stenographic and
videographic deposition costs. This holding, however, does not end the inquiry; the Court must now
determine which costs to reject. The Court agrees with Plaintiff that Thornburg’s video deposition
was necessary for the jury to evaluate his credibility, “[d]ue to the critical nature of his testimony [as

4

Correspondingly, the Court declines to adopt the position articulated in Nat’l Benefit
Programs, Inc. v. Express Scripts, Inc., No. 4:10CV00907 AGF, 2012 WL 2326071 (E.D. Mo.
June 19, 2012). In Express Scripts, the Court first stated, “District courts addressing the issue
have generally held that the statute permits recovery of costs for either stenographic transcription
or video-recording of depositions, but not both.” Id. at * 3. However, the Court subsequently
stated, “Courts do allow recovery of costs for both stenographic transcription and video recording
of depositions but only where the prevailing party offers a persuasive reason for obtaining the
video deposition.” Id. In making this latter statement, however, the Court cited cases that fail
even to mention the statutory construction of § 1920(2). See EEOC v. CRST Van Expedited, Inc.,
No. 07CV95 LRR, 2010 WL 520564, at *19 (N.D. Iowa Feb. 9, 2010), vacated on other grounds
by EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2013); Lewis v. Heartland Inns of
Am., 764 F. Supp. 2d 1037, 1048 (S.D. Iowa 2011); Baka, 2011 WL 2881710, at **3-4.
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a corporate representative], his inherent adversity as a BNSF employee, and his unavailability at
trial5[.]” [ECF No. 260 at 10]. Additionally, the video deposition was played at trial. While the
Court doubts any one of these factors standing alone would suffice, together they constitute “special
circumstances in this case that made it necessary for the jury to actually see and hear [Thornburg’s]
testimony on video, as opposed to hearing that testimony read aloud.” Lift Truck Lease & Serv., Inc.,
2013 WL 6331578, at *2. Therefore, the Court will tax Defendant $605.00 in costs associated with
Thornburg’s video deposition, and deny taxation of costs associated with his stenographic
deposition.
5.

Deposition of Randy McElroy Totaling $970.80

Plaintiff’s Motion states he incurred $1,026.80 in expenses related to the videographic and
stenographic depositions of Randy McElroy, Defendant’s employee. [ECF No. 251-1 at 2]. Upon
receiving Defendant’s Objections, Plaintiff lowered the amount sought to $905.80, waiving “costs
of courier ($30), video archival ($15), Etranscript ($65), and transcript/archive ($11).” [ECF No.
260 at 10 n. 6]. However, as with Thornburg’s deposition costs, the invoices for McElroy’s
deposition costs indicate Plaintiff did not incur costs for E-transcripts. Rather, Plaintiff incurred
$65.00 for the attendance of a court reporter. [ECF No. 251-3 at 11]. Accounting for this clerical
error, the Court will include $65.00 in the amount sought by Plaintiff. Thus, the Court will view
Plaintiff’s Motion as seeking $970.80, representing (1) $577.50 for videographic deposition costs,
and (2) $393.30 for stenographic deposition costs. Defendant objects, arguing Plaintiff may not
recover both videographic and stenographic costs.

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Because he lived in the Springfield, Missouri area, Thornburg was beyond the Court’s
subpoena power. Additionally, at the time of trial, he was deceased.
10

As previously explained, § 1920(2) precludes recovery of both videographic and stenographic
deposition costs, and the Court must therefore determine which costs to reject. The reasons given
for McElroy’s video deposition are substantially the same as those for Thornburg’s video deposition.
That is, McElroy was a critical, adverse witness in this case, he was beyond the Court’s subpoena
power and therefore a potentially unavailable witness, and his video deposition was played at trial.
Therefore, the Court will tax Defendant $577.50 in costs associated with Thornburg’s video
deposition, and deny taxation of costs associated with his stenographic deposition.
6.

Deposition of Dr. George Schoedinger Totaling $1,138.25

Plaintiff seeks to recover costs associated with the deposition of Dr. George Schoedinger.
In total, Plaintiff seeks $1,138.25, representing (1) $546.25 for videographic deposition costs, and
(2) $592.00 for stenographic deposition costs.
As an initial matter, Defendant does not specifically object to taxation of both videographic
and stenographic costs. Rather, Defendant simply states, “Non-recoverable expenses: courier
($15.00); color copies of exhibits in addition to electronic copy ($1.00); black and white exhibits in
addition to electronic copy ($38.50); transcript/exhibit archive ($11.00).”6 [ECF No. 255 at 7].
Plaintiff contends, because Defendant failed to specifically object to taxation of both videographic
and stenographic costs, the Court should tax both categories to Defendant. The Court cannot agree,
because to do so would be to reach outside the confines of § 1920, which “imposes rigid controls
on cost-shifting in federal courts[.]” Brisco-Wade, 297 F.3d at 782 (internal quotations omitted).
Therefore, the Court must determine which costs to reject. Plaintiff sets forth compelling
reasons for taking video testimony of Schoedinger. First, Schoedinger was a critical witness, as he

6

Plaintiff has waived courier costs, video archival costs, and transcript archive costs, and
the Court has already determined copies of exhibits are taxable to the same extent as deposition
transcripts; thus, Defendant’s objection raises no new issue requiring resolution.
11

served both as a causation expert and as Plaintiff’s treating physician. Second, Schoedinger referred
to two demonstrative exhibits – a spine model and an illustration – during his deposition. Third,
Plaintiff reasonably and accurately anticipated Defendant would play a video deposition of its own
expert, Dr. Peter Mirkin; Plaintiff justifiably matched Defendant’s expert to ensure the jury would
not attribute disparate weight merely because of a difference in technology. Finally, the video
deposition was played at trial. For these reasons, the Court concludes Plaintiff is entitled to $546.25
in costs for Schoedinger’s videographic testimony.
7.

Deposition of Dr. R. Peter Mirkin Totaling $392.60

Plaintiff seeks $392.60, representing $341.70 for Mirkin’s deposition transcript, $11.90 for
corresponding exhibits, and $39.00 for a copy of the video deposition noticed and obtained by
Defendant. Defendant objects to the $39.00 for Plaintiff’s copy of the video deposition.7
The Court will tax Defendant $353.60 for costs associated with Mirkin’s deposition. The
$39.00 for the video deposition transcript is an “electronically recorded transcript,” and the Court
may not award such costs in addition to the stenographic costs of the deposition. Therefore, the
Court will reject the $39.00 cost associated with the video transcript copy.
C.

Witness Fees

Under 28 U.S.C. § 1920(3), Plaintiff may recover “[f]ees and disbursements for printing and
witnesses.” Plaintiff seeks a total of $2,540.97 in witness fees, and Defendant has raised a number

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Defendant sets forth two other objections. First, Defendant objects to the $11.90 for
copies of exhibits. As previously discussed, such costs are taxable to the same extent as their
corresponding depositions.
Second, Defendant states, “Plaintiff cannot recover for both a video and a stenographic
transcript. The ‘videography fees: $576.25’ should be stricken.” [ECF No. 255 at 7]. Plaintiff
has not claimed such a cost. Accordingly, this request is denied as moot.
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of objections. The Court will award Plaintiff the entire amount claimed, for reasons discussed as
follows.
1.

Witness Fees of Kenny Scammell Totaling $608.06

Plaintiff seeks $608.06 for the witness fees of Kenny Scammell, a train conductor and
Plaintiff’s coworker. This sum includes travel mileage and two days of meals, parking, lodging, and
fees for court attendance. Defendant argues it should not have to pay Scammell’s witness fees,
because his testimony was duplicative of Plaintiff’s. Additionally, Defendant contends, to the extent
it must pay these fees, the Court should reduce them by fifty percent, because Scammell only
testified one day.
The Court finds Scammell’s testimony was reasonably necessary to the case. As Plaintiff
states, Scammell aided in establishing Plaintiff’s inability to return to work by testifying about a
conductor’s job duties. He also helped demonstrate Plaintiff’s lost wages by testifying about the
earnings of a conductor. The Court will not reduce Scammell’s costs on the basis he testified only
one day. As explained in Linneman Construction, Inc. v. Montana-Dakota Utilities Company, Inc.,
the Eighth Circuit has
no disagreement with the general rule that witness and subsistence expenses are not
limited to the day the witness testifies but includes those days in which the witness
necessarily attends trial. . . . This rule, however, however, does not operate as an
open invitation to fill the courtroom with witnesses during the entire trial. It has long
been the practice in this circuit to allow expenses for only such number of witnesses
as the court deems reasonable. . . . They will also only be allowed expenses for the
number of days the court deems reasonable.
504 F.2d 1365, 1372 (8th Cir. 1974) (internal citations omitted). Here, Plaintiff did not “fill the
courtroom” with excessive witnesses. Scammell reasonably attended trial for two days, as he
anticipated testifying on November 5, 2013, but, due to routine trial delays, ultimately testified on
November 6, 2013. Therefore, the Court will tax Defendant $608.06 for Scammell’s witness fees.

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2.

Witness Fees of Greg Willard Totaling $516.25

Plaintiff seeks $516.25 for the witness fees of Greg Willard, a BNSF engineer who was on
the locomotive with Plaintiff on the day of the accident. This sum includes travel mileage, two days
of meals, and one day of parking, lodging, and court attendance. Defendant argues it should not have
to pay Scammell’s witness fees, because his testimony was duplicative of both Plaintiff’s and
Scammell’s testimony. Additionally, Defendant contends, to the extent it must pay these fees, the
Court should reduce Willard’s meals by fifty percent, because he only testified one day.
The Court will tax Willard’s costs to Defendant. Willard provided testimony unique from
that of any other witness. Aside from Plaintiff, he constituted the sole individual who could provide
first-hand knowledge of the accident at issue in this case.

He also testified regarding his

observations of Plaintiff after the accident. In other words, he served as the only witness who could
testify about the accident without bearing the stigma of having a financial stake in the case.
Moreover, the Court sees nothing excessive in allowing Willard two days of meals, when he lived
over two hundred miles away from the courthouse. Plaintiff is entitled to $516.25 for Willard’s
costs.
3.

Witness Fees of Expert Debbie Tolliver Totaling $281.82

Plaintiff seeks reimbursement for witness fees relating to expert witness Debbie Tolliver.
In total, Plaintiff seeks $281.82, representing $241.82 for travel expenses and $40.00 for statutory
witness fees under 28 U.S.C. § 1821(b). Defendant does not object.8 Thus, the Court will tax
Defendant $281.82 for Tolliver’s witness fees.

8

Defendant does object to the $950.00 Plaintiff incurred in expert witness fees associated
with trial attendance. However, Plaintiff subsequently waived any claim to this amount.
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4.

Witness Fees of Expert Alan Blackwell Totaling $967.15

Plaintiff seeks to recover witness fees associated with expert witness Alan Blackwell.
Specifically, Plaintiff asks the Court to tax Defendant $967.15, representing (1) $80.00 for court
attendance, (2) $616.80 in air travel, (3) $108.00 for lodging, (4) $41.97 for meals, (5) $80.00 in taxi
travel, and (6) $40.38 in parking.
Some of these amounts are undisputed. Defendant makes no objection to taxation of costs
for lodging, meals, and taxi travel. The Court agrees these constitute taxable costs, and will
therefore order Defendant to pay $229.97 for these expenses. Likewise, Plaintiff is entitled to the
$80.00 fee for court attendance, representing $40.00 for Blackwell’s actual attendance at trial and
$40.00 for one day “necessarily occupied in going to and returning from the place of attendance[.]”
28 U.S.C. § 1821(b).
The two remaining expenses – air travel and parking – will also be taxed to Defendant.
Defendant objects to the $616.80 fee for air travel only to the extent the Court finds such sum
unreasonable. The Court finds $616.80 constitutes a reasonable price for a round trip between
Denver, Colorado and St. Louis, Missouri. Additionally, the Court will tax Defendant $40.38 for
Blackwell’s parking costs; while Plaintiff initially failed to substantiate this with a valid receipt, he
has subsequently provided the requisite documentation. [ECF No. 260-4].
Accordingly, the Court will tax Defendant $967.15 for Blackwell’s witness fees.
5.

Witness Fees of Expert Rebecca Summary Totaling $167.69

Plaintiff seeks to recover $167.69 for fees associated with expert witness Rebecca Summary.
Specifically, Plaintiff asks the Court to tax Defendant $127.69 in travel mileage and $40.00 for court
attendance. Defendant does not object. The Court will tax Defendant $167.69 for Summary’s
witness fees.

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D.

Fees for Exemplification and Copies of Papers

The Court may award copy and exemplification fees incurred for items “necessarily
obtained” for use in the case. 28 U.S.C. § 1920(4). Plaintiff asks the Court to tax Defendant costs
of copies of exhibits and costs of editing three video depositions for trial. For reasons discussed
infra, the Court will award $1,833.75 for these costs.
1.

Copies of Exhibits Totaling $1,573.00

Plaintiff seeks $1,573.00 for copies of exhibits. To substantiate this claim, Plaintiff
submitted an In-House Cost Report from counsel’s law firm, stating the number of copies made
(6,294 total) and the cost per page (twenty-five cents). [ECF No. 251-9]. Defendant objected,
arguing Plaintiff failed to provide adequate documentation for this expense. Subsequently, Plaintiff
submitted his Reply Memorandum, including a chart itemizing 5,575 copies, falling into nine
categories: “Plaintiff’s Exhibits Used at Trial,” “Copies of Plaintiff’s Exhibits Provided to the
Court,” “Copies of Defendant’s Exhibits Provided on CD,” “Case Law Provided to Court and
Defendant,” “Copies of Documents related to Motions in Limine,” “Copies of Documents related
to Discovery Answers to be Introduced into Evidence,” “Copies of Documents related to Deposition
Designations,” “Copies of other Pretrial Documents Provided to Court or Defendant,” and “Jury
Instructions.”
“In determining whether a photocopy expense is necessary so as to be taxable as a cost and
whether to award that cost to the prevailing party, the district court enjoys discretion so long as it
does not act arbitrarily.” Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th Cir.
2002). However, several photocopying costs are not taxable under § 1920(4):
[P]laintiffs may not recover the photocopy expenses that they incurred in copying
their own pleadings and motions for filing with the Court, serving on opposing
counsel, or transmitting to their client; nor does the cost statute cover a party’s
copying of documents to be produced in discovery, or copying research materials for
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the convenience of counsel. These are not taxable costs under the statute, because
they are not necessarily obtained for use in the case.
Emmenegger v. Bull Moose Tube Co., 33 F. Supp. 2d 1127, 1133 (E.D. Mo. 1998) (internal
quotations omitted).
The Court finds some of Plaintiff’s itemized categories are not taxable. Specifically, the
Court will reject Plaintiff’s claim for “Copies of Defendant’s Exhibits Provided on CD,” constituting
744 pages. Plaintiff has failed to demonstrate how he used these copies, or how they were otherwise
made for anything other than the convenience of counsel. Likewise, the Court will reject Plaintiff’s
claim for “Copies of Documents related to Motions in Limine,” constituting 404 pages, because
Plaintiff may not recover costs for copies of his own motions, and Plaintiff has failed to demonstrate
copies of Defendant’s motions were necessarily obtained for use in the case, and not merely for
convenience of counsel.
Accounting for these unrecoverable copies, 4,427 pages of copies remain in dispute.9 The
vast majority of these copies pertain to exhibits used at trial, case law provided to the Court, jury
instructions, and documents required for preparation of trial, such as deposition designations. The
Court finds such copies were necessarily obtained for use in the case, and will tax Defendant these
costs with one exception. That is, included in these costs are 42 pages of copies pertaining to
Plaintiff’s Motion to Strike Defendant BNSF’s Filing Titled “Joint Stipulation of Uncontested Facts
and Brief Summary of Case for Voir Dire” [ECF No. 172]. Plaintiff may not recover costs arising

9

The Court obtained this number by subtracting 1,148 – the number of unrecoverable
copies thus far – from the 5,575 copies itemized in Plaintiff’s Reply Memorandum. The Court
agrees with Defendant that Plaintiff’s In-House Cost Report is insufficient to provide any “details
or explanations regarding what documents [Plaintiff] copied or how [he] used the documents.”
Dunn v. Nexgrill Indus., Inc., No. 4:07CV01875 JCH, 2011 WL 1060943, at *1 (E.D. Mo. Mar.
21, 2011). Thus, the Court will not award costs based on the 6,294 copies listed in the In-House
Cost Report, but will instead examine only the 5,575 copies in Plaintiff’s itemized chart.
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out of his own motions. Bull Moose Tube Co., 33 F. Supp. 2d at 1133. Thus, the Court will award
costs for 4,385 copies, at a rate of twenty-five cents per page, totaling $1,096.25.
2.

Video Editing Totaling $737.50

Plaintiff seeks $737.50 for video editing of depositions used at trial. Defendant does not
object. Thus, the Court will tax Defendant $737.50 for video editing costs.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Kevin D. Cowden’s Motion for Bill of Costs
[ECF No. 252] is GRANTED, in part, and DENIED, in part. Plaintiff shall recover a total of
$7,870.65, representing (1) $350.00 in fees of the Clerk, (2) $3,145.93 in fees of the Court Reporter
for transcripts used in the case, (3) $2,540.97 in fees for witnesses, and (4) $1,833.75 in fees for
exemplification and copies of papers, including video editing of depositions played at trial. The
Clerk of Court shall tax costs in favor of Plaintiff Kevin D. Cowden, and against Defendant BNSF
Railway Company, in the amount of $7,870.65.
Dated this 3rd day of January, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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