Behlmann v. Century Surety Company et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Bill of Taxable Costs 92 is GRANTED, in part, and DENIED, in part. The Court taxes costs against Plaintiff and in favor of Defendant in the amount of $3,157.00. IT IS FURTHER ORDERED that Plaintiffs Motion for New Trial 95 is DENIED. Signed by District Judge John A. Ross on 6/27/14. (JWD)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CENTURY SURETY COMPANY and
STATE FARM MUTUAL AUTOMOBILE
No. 4:12-CV-1567 JAR
MEMORANDUM AND ORDER
This matter is before the court on Defendant's Bill of Taxable Costs (ECF No. 92) and
Plaintiffs Motion for New Trial (ECF No. 95). These matters are fully briefed and ready for
Bill of Costs
In Defendant's Bill of Taxable Costs, it requests costs in the amount of $8,657.00 to be
taxed against Plaintiff David Behlmann ("Plaintiff') and in favor of Defendant Century Surety
Company ("Defendant"). On May 16, 2014, the Court entered Judgment in favor of Defendant
based upon the jury's May 8, 2014 verdict. In that Order, the Court assessed costs against
Plaintiff. (ECF No. 89).
Plaintiff objects to $5,700 of Defendant's requested costs for hiring a videographer to
create a database, edit videotaped depositions, and attend the trial. (ECF No. 94). Plaintiff
Defendant did not file a reply memorandum in support of its Motion for Bill of Costs and the
time for filing such a reply has run.
contends that these costs are not taxable because they are not provided for under 28 U.S.C.
§1920 and because such costs were incurred solely for the convenience of counsel.
The Court declines to award Defendant its costs for a "Trial Technician (AudioNisual
Professional)." As noted by Plaintiff, the Court may only tax costs that are enumerated in 28
See Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002), quoting
Crawford Fitting Co. v. J.T. Gibbons, Inc .. 482 U.S. 437, 444-45 (1987) ("Section 1920 imposes
'rigid controls on cost-shifting in federal courts,' and 'absent explicit statutory or contractual
authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are
bound by the limitations set out in' section 1920.") Section 1920 does not provide for the Court
to tax costs for a trial technician. See 28 U.S.C. §1920; Kalitta Air L.L.C. v. Cent. Texas
Airborne Sys. Inc., 741 F.3d 955, 959 (9th Cir. 2013)(reversing award of costs for editing and
synchronizing deposition videotapes because such costs are not provided for by §1920).
Therefore, the Court denies the taxation of costs for a trial technician.
The Court grants
Defendant's Motion for Costs in all other respects and awards Defendant its costs in the amount
Motion for New Trial
In his Motion for a New Trial, Plaintiff identifies four purported legal errors that
"prejudiced Plaintiffs substantial rights and resulted in a miscarriage of justice: (1) applying
Rev.Stat.Mo. §490.715.5 to the amount of Plaintiffs medical damages; (2) denying Plaintiff the
right to impeach by contradiction the testimony and test results of Defendant's expert, Dr.
Michael Oliveri, Ph.D.; (3) denying Plaintiff the right to prove through extrinsic evidence the
financial and personal conflict of interest of Defendant's expert, Dr. Richard Lehman, M.D.; and
(4) upholding Defendant's use of a peremptory challenge to strike the only African-American
panel member during voir dire." (Plaintiffs Motion for New Trial at 1).
A. Standard for Granting a New Trial
Plaintiff brings his motion for new trial pursuant to Federal Rule of Civil Procedure
59(a)(l)(A), which provides that "[t]he court may, on motion, grant a new trial ... after a jury
trial, for any reason for which a new trial has heretofore been granted in an action at law in
federal court." "Under Rule 59, the decision to grant a new trial lies within the sound discretion
of the trial court, and its decision will not be reversed on appeal absent a clear abuse of that
discretion." Howard v. Mo. Bone & Joint Ctr., Inc., 615 F.3d 991, 995 (8th Cir.2010). "The key
question in determining whether a new trial is warranted is whether it is necessary to prevent a
miscarriage of justice." Haigh v. Gelita USA, Inc., 632 F.3d 464, 471 (8th Cir.2011).
B. Applying Rev.Stat.Mo. §490.715.5 to the Amount of Plaintiff's Medical Damages
Plaintiff argues that Rev.Stat.Mo. §490.715.5 does not apply because the exception to the
collateral source rule only applies when the person who committed the negligence is a "party" to
the lawsuit and the cause of action is for tort.
ECF No. 95-1 at 2-5; see Rev.Stat.Mo.
§490.715.5. Because this underinsured motorist action is a contract action and the negligent
tortfeasor was not a party to the lawsuit, Plaintiff contends that Section 490.715.5 and evidence
of the amount Plaintiff actually paid for his medical bills was not admissible.
As indicated on the record, the Court held that §490.715.5 is applicable to the instant
case. Although §490.715.5 refers to the "negligence of any party," the Court construed that
language to include an insurer who stands in the shoes of a party.
coverage claims are inherently derivative of the negligence of the non-party tortfeasor.
Messner v. Am. Union Ins. Co., 119 S.W.3d 642, 648-49 (Mo. Ct. App. 2003)("[A]ny person,
who pursuant to a legal obligation to do so, has paid even indirectly, for a loss or injury resulting
from the wrong or default of another will be subrogated to the rights of the creditor or injured
person against the wrongdoer or defaulter, persons who stand in the shoes of the wrongdoer, or
others who, as payor, are primarily responsible for the wrong or default.")(quoting Kroeker v.
State Farm Mut. Auto. Ins. Co., 466 S.W.2d 105, 110 (Mo. Ct. App. 1971)). The Court found no
reason that the insurance company should not be entitled to the same defenses to Plaintiffs claim
of medical damages that would have been available to the underinsured motorist. The parties
agreed that Plaintiff rebutted the statutory presumption set forth in §490.715.5 (ECF No. 52 at 3)
and, therefore, the Court permitted both the amount charged and the amount necessary to satisfy
Plaintiffs financial obligations to the providers to be admissible at trial. In accordance with the
foregoing, the Court finds that it properly followed Missouri law in permitting both the amount
of the medical expenses billed and the amount paid to be presented to the jury and the Court
denies Plaintiffs Motion for New Trial as to this argument. See Sims v. Progressive Direct Ins.
Co., 4:09CV1213 CDP, 2010 WL 3038726 (E.D. Mo. Aug. 3, 2010); see 35 MOPRAC § 19:11
(Deck v. Teasley, 332 S.W. 3d 536 (Mo. 2010) applies in UIM actions).
C. Impeaching by Contradiction the Testimony and Test Results of Defendant's
Expert, Dr. Michael Oliveri, Ph.D.
Plaintiff contends that the Court erred in preventing Plaintiff from testifying (1) that Dr.
Oliveri administered the tests improperly by stopping Plaintiff mid-answer and giving him
guidance on how to respond; and (2) that the assistant who conducted the tests was confused and
also improperly suggested answers to Plaintiff.
In contrast to Plaintiffs argument, the Court finds that it allowed Plaintiff to testify
regarding these purported irregularities in Dr. Oliveri's testing. Because all of this was presented
to the jury, the Court finds no error and denies Plaintiffs Motion for a New Trial on this
D. The Alleged Conflict of Interest of Defendant's Expert, Dr. Richard Lehman,
Plaintiff claims that the Court should have allowed him to testify regarding his
information that Defendant's expert, Dr. Lehman, had a conflict of interest relating to his
medical examination of Plaintiff. Plaintiff asserts that Dr. Lehman was involved in a legal
dispute with Plaintiffs nephew based upon Dr. Lehman's purchase of Ken Behlmann
Automotive Services. Plaintiff argues that Dr. Lehman's medical opinion was biased against
Plaintiff as a result of this dispute.
The Court denies Plaintiffs motion for a new trial as to this issue. Plaintiff failed to
present any evidence, other than hearsay, regarding Dr. Lehman's purported conflict of interest.
Plaintiffs counsel indicated that he intended to play some dialogue between Mr. Behlmann and
Dr. Lehman and also to call Mr. Behlmann to testify that the dispute between his nephew and Dr.
Lehman was a serious dispute. The Court determined that Plaintiff had no personal knowledge
in support of his proposed testimony regarding the alleged dispute and his testimony would only
have been hearsay. The Court holds that it properly excluded this testimony.
E. Peremptory Challenge to Strike the Only African-American Panel Member
Plaintiff argues that the Court erred in allowing Defendant to strike an African-American
venireperson. Plaintiff notes that Defendant struck the only African-American from 17 potential
jurors. Plaintiff argues that Defendant claimed that it struck the African-American venirepe1son
because he did not speak during voir dire, but Defendant did not strike other venirepersons who
also did not speak during voir dire.
In response to arguments that the African-American
venireperson was not forthcoming, Plaintiff claims that the venireperson was never asked any
questions that required answers from him.
Under Batson v. Kentucky, 476 U.S. 79 (1986), a trial court must engage in a three-step
inquiry. The trial court first determines whether there has been a prima facie showing that the
peremptory strike was based on race. Smulls v. Roper, 535 F.3d 853, 859 (8th Cir. 2008)(citing
Rice v. Collins, 546 U.S. 333, 338 (2006)). If the first step is satisfied, the burden then shifts to
the party seeking the strike to present a race-neutral explanation for striking the juror. The
striking party's stated reason need not be '"persuasive, or even plausible'" as long as it is not
inherently discriminatory. Id. The burden then shifts back to the party challenging the strike at
the third step to shoulder his ultimate burden of establishing purposeful discrimination.
The Court found that Defendant provided race-neutral reasons for striking the AfricanAmerican venireperson. First, the venireperson was a retired auto worker and Defendant stated
that he was concerned that he would be sympathetic to Plaintiff, who was involved in the
automobile sales business. Second, Defendant noted that on two occasions the venireperson was
not forthcoming with information. The venireperson failed to respond regarding a question
about people involved in the auto industry and with automobile dealerships. The venireperson
also did not inform the Court regarding his involvement in a lawsuit when the panel was asked
about prior litigation. For these race-neutral reasons, the Court holds that it properly found that
Defendant's strike of an African-America venireperson was for race-neutral reasons and not
improper under the Baston v. Kentucky standard.
IT IS HEREBY ORDERED that Defendant's Bill of Taxable Costs  is GRANTED,
in part, and DENIED, in part. The Court taxes costs against Plaintiff and in favor of Defendant
in the amount of $3,157.00.
IT IS FURTHER ORDERED that Plaintiffs Motion for New Trial  is DENIED.
2 7t.'- of June, 2014.
ED STATES DISTRICT JUDGE
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