Coolidge v. United States of America
Filing
262
DECISION AND ORDER IT HEREBY IS ORDERED, that Plaintiff's Motion for New Trial (Docket No. 224) is denied but her Motion to Alter or Amend the Judgment (id.) is granted in part and the Judgment amended as follows,FU RTHER, Judgment shall be amended and entered for Plaintiff that she recovers a total $3,915,436.64 from Defendant for decedent Howard Southard's pain and suffering, fear of impending death, death, and the loss of parental support by his dis tributee children from Defendant United States,FURTHER, Judgment shall be entered awarding to Plaintiff Costs totaling $11,974.50;FURTHER, that the Clerk of Court is directed to enter an Amended Judgment in favor of Plaintiff, consistent w ith this Decision and Order and the previous Decision and Order (Docket No. 220) as amended by this Decision and Order, pursuant to Rule 52(a) and 58 of the Federal Rules of Civil Procedure including post-judgment interest from the date of judgment i s entered, see 28 U.S.C. § 2674.FURTHER, that the Clerk of Court is directed to close this case.SO ORDERED.Signed by William M. Skretny, United States District Judge on 3/31/2021. (JCM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILMA COOLIDGE, as Executor of the Estate
of Howard Southard, Deceased,
Plaintiff,
DECISION AND ORDER
v.
10-CV-363S
UNITED STATES OF AMERICA,
Defendant.
I.
II.
Contents
Introduction .............................................................................................................. 2
Background .............................................................................................................. 3
A. Facts..................................................................................................................... 3
B. Procedural History ................................................................................................ 4
1.
Plaintiff’s Motion for New Trial or Amended Judgment (No. 224) ................... 4
2.
Plaintiff’s Bill of Costs (Nos. 226, 235) ............................................................ 5
C. Plaintiff’s Motion for New Trial (Docket No. 224) .................................................. 6
1.
Plaintiff’s Initial Arguments (Docket No. 224) .................................................. 6
2.
The Government’s Response (Docket Nos. 231, 232).................................... 8
3.
Plaintiff’s Reply (Docket Nos. 251, 252, 261).................................................. 9
4.
Government Sur-Reply (Docket Nos. 257, 258) ........................................... 11
D. Plaintiff’s Amended Bill of Costs (Docket Nos. 235, 226) ................................... 12
III.
Discussion of Motion for New Trial and Amend Judgment (Docket No. 224) ..... 14
A. Applicable Standards for Motion for New Trial and Amend Judgment................ 14
B. Conscious Pain and Suffering ............................................................................ 17
1.
The Duration of Conscious Pain and Suffering ............................................. 18
2.
The Rate ....................................................................................................... 21
3.
Calculation of Damages ................................................................................ 24
C. Fear of Impending Death .................................................................................... 25
D. Plaintiff’s Total Damages .................................................................................... 34
IV.
Discussion of Plaintiff’s Amended Bill of Costs (Docket No. 235, Ex. A) ............ 35
A. Applicable Standards for Recovery of Costs ...................................................... 35
B. Undisputed Costs ............................................................................................... 37
C. Transcript Costs ................................................................................................. 37
1.
Original Transcription Costs .......................................................................... 37
2.
Dr. Nader’s Transcript ................................................................................... 41
3.
Costs of Evidentiary Ruling Transcript .......................................................... 44
4.
5.
Esquire Deposition Solutions ........................................................................ 45
Recoverable Transcription Costs .................................................................. 47
D. Duplication Charges ........................................................................................... 48
1.
In-House Duplication Costs ....................................................................... 48
2.
Other Duplication Charges Claimed .......................................................... 50
E. Plaintiff’s Claimed Other Costs ........................................................................... 51
F. Acceptable Costs................................................................................................ 52
V. Conclusion ............................................................................................................. 53
VI.
Orders ................................................................................................................ 53
I.
Introduction
Before this Court is Plaintiff’s Motion 1 (Docket No. 224) for a new trial or
amendment of the Judgment (Docket No. 221) on damages following her 2018 Federal
Tort Claims Act bench trial. Plaintiff is the executrix of her late brother, Howard Southard.
Following the bench trial, this Court found that Plaintiff’s damages totaled $2,115,436.64,
for the pain and suffering, consciousness of impending death, funeral expenses, and the
losses of the heirs of Mr. Southard. (Docket No. 220, Coolidge v. United States, No.
10CV363, 2020 WL 3467423 (W.D.N.Y. June 25, 2020).)
In this motion, Plaintiff contends that Howard Southard suffered longer and more
severely than was found by this Court. Thus, she moves either that the judgment be
altered to reflect the greater suffering endured or a new trial ordered. Familiarity with
much of the evidence and the Decision and Order (id.) following the bench trial is
presumed.
1In
support of her motion, Plaintiff submits her attorney’s Declaration with exhibits (Docket No. 224);
her Memorandum of Law (Docket No. 225), and her initial Reply (Docket No. 238). Plaintiff then moved for
leave to amend her Reply (Docket No. 239). Despite the Government’s opposition (see Docket No. 243),
this Court granted leave to amend (under conditions) (Docket Nos. 244, 247). Plaintiff then filed her revised
Reply papers (Docket Nos. 251, 252; see also Docket No. 261, Plaintiff’s Attorney’s revised Reply
Declaration).
In opposition, the Defendant United States submits its Memorandum of Law (Docket No. 231), its
attorney’s Declaration (Docket No. 232), and its Sur-Reply (Docket Nos. 257 (Sur-Reply Memorandum),
258 (Government Attorney’s Declaration)).
2
For the reasons stated herein, Plaintiff’s Motion for a New Trial (Docket No. 224)
is denied, but her motion for amendment of the Judgment (id.) is granted in part. A new
trial will not be held but the judgment for Plaintiff is increased to total $3,915,436.64.
Meanwhile, Plaintiff submitted (Docket No. 226) and then amended (Docket
No. 235, Ex. A) her Bill of Costs. Following the Government’s objections (e.g., Docket
No. 228) and extensive briefing discussed below, for the reasons stated herein, this Court
awards Plaintiff costs totaling $11,974.50, based upon the Amended Bill of Costs.
II.
Background
A. Facts
Plaintiff sued for malpractice upon Howard Southard and his wrongful death while
hospitalized at the Veterans Affairs Medical Center in Buffalo, New York.
At the
conclusion of the bench trial, this Court found for Plaintiff and awarded her a total of
$2,115,436.64 for Mr. Southard’s pain and suffering and wrongful death and other
injuries, Coolidge v. United States, supra, 2020 WL 3467423 (W.D.N.Y. June 25, 2020)
(Docket No. 220).
Pertinent to the arguments in Plaintiff’s pending motion are $1,740,000.00 of that
award for Mr. Southard’s conscious pain and suffering and $366,663.00 for fear of his
impending death. Plaintiff argues that these figures did not adequately compensate for
his losses.
This Court found that Mr. Southard suffered conscious pain and suffering for
58 days of the 118 days of hospitalization, excluding time during his palliative care and
days when his medical record noted that he was alert and indicated no pain, Coolidge,
supra, 2020 WL 3467423, at *36. Applying this Court’s earlier decision in Kolerski v.
3
United States, 06CV422, 2008 WL 4238924 (W.D.N.Y. Sept. 8, 2008) (Skretny, J.), and
citing New York State cases as comparative cases (but acknowledging that these cases
are no way factually close to what Mr. Southard endured, Coolidge, supra, 2020 WL
3467423, at *33-34, 36), this Court found that a rate of $30,000.00 per day for
Mr. Southard’s conscious pain was reasonable compensation. At $30,000.00 per day,
this Court calculated damages for suffering he endured for 58 days totaled $1,740,000.00.
Id. at *36.
On Mr. Southard’s claim for his fear of impending death, this Court found he feared
from July 16, 2009, when he learned that continued dialysis would do him no good with
prior knowledge that, if taken off dialysis, he would perish, id. at *37. Again comparing
New York State cases (again none having similar duration realizing death was imminent
or overall hospitalization as endured by Mr. Southard, see id. at *37), this Court found
that a rate of $33,333.00 per day (the average of those cases’ damage awards calculated
to a per day rate) was applicable and reasonable compensation for the last eleven days
of his life for his apprehension of his death totaled $366,663.00, id. at *38.
B. Procedural History
1. Plaintiff’s Motion for New Trial or Amended Judgment (No. 224)
Following entry of Judgment (Docket No. 211), Plaintiff filed the pending motion
for a new trial (Docket No. 224). Responses to this motion initially were due by August 27,
2020, and any reply by September 10, 2020 (Docket No. 227). This schedule was
extended (see Docket No. 229), with the response due September 15, 2020, and reply
by October 15, 2020 (Docket No. 230). Plaintiff moved to extend that reply deadline
4
(Docket No. 233) and this Court granted that motion, resetting that deadline for
November 12, 2020 (Docket No. 237).
Defendant responded (Docket Nos. 231, 232).
Plaintiff then initially replied
(Docket No. 238). Plaintiff later moved for leave to amend her Reply (Docket No. 239).
After a December 2, 2020, status conference on the motion for leave to amend (Docket
No. 243), this Court granted conditional leave to amend her Reply (Docket Nos. 244,
247). Plaintiff then filed her revised Reply papers (Docket Nos. 251 (Attorney’s Reply
Declaration), 252 (Revised Reply Memorandum and Exhibit)); this Court considers
Plaintiff’s revised Reply (Docket Nos. 251, 252) instead of the original Reply (Docket
No. 238). The Government then filed its Sur-Reply papers (Docket Nos. 257, 258).
Plaintiff sought leave to reply to the Government’s Sur-Reply (Docket No. 259) which was
denied but Plaintiff was allowed to correct her counsel’s Reply Declaration (Docket
No. 260; see Docket No. 261).
2. Plaintiff’s Bill of Costs (Nos. 226, 235)
Meanwhile, on July 27, 2020, Plaintiff filed her Bill of Costs (Docket No. 226; see
Docket No. 235, Pl. Reply Ex. B) and the Government objected to most of the costs
claimed (Docket No. 228). This Court ordered Plaintiff’s reply to be due on October 15,
2020 (Docket No. 230), cf. W.D.N.Y. Loc. Civ. R. 54(c). Plaintiff submitted with her Reply
an Amended Bill of Costs (Docket No. 235, Ex. A). This Court considered the Amended
Bill of Costs.
On the Government’s request (Docket No. 236), this Court then granted the
Government leave to file a Sur-Reply, due by December 1, 2020, with Plaintiff’s response
to that paper due by December 15, 2020 (Docket No. 237). The Government duly filed
5
its Sur-Reply (Docket Nos. 241, 242) and Plaintiff filed her timely Response thereto
(Docket No. 245).
The Court Clerk has not acted on Plaintiff’s Bill of Costs or its
amendment.
Oral argument was deemed unnecessary; the Motion for a New Trial and Plaintiff’s
Amended Bill of Costs were deemed submitted as of March 22, 2021.
C. Plaintiff’s Motion for New Trial (Docket No. 224)
1. Plaintiff’s Initial Arguments (Docket No. 224)
Plaintiff argues several points that she claims erroneously diminished her
damages. She focuses on two aspects of the damages awarded, Howard Southard’s
conscious pain and suffering and his fear of his impending death. In her revised Reply
she adds a critique on the calculation of the damage amount for Mr. Southard’s pain and
suffering (Docket No. 252, Pl. Revised Reply Memo. at 10-11).
Plaintiff argues that Mr. Southard suffered conscious pain and suffering for the
entirety of his 118 days while hospitalized at VAMC (Docket No. 224, Pl. Atty. Decl. ¶¶ 79, 23-26; see generally Docket No. 252, Pl. Revised Reply Memo. at 1-9). She noted the
fifty procedures Mr. Southard endured during his hospitalization (Docket No. 224, Pl. Atty.
Decl. ¶¶ 168-75). Mr. Southard was unable to eat or drink on his own for the entire
hospitalization, but the Decision and Order did not reflect this (id. ¶¶ 68-70; Docket
No. 225, Pl. Memo. at 7). Mr. Southard’s pain due to bedsores for the last two months of
his life was not considered (Docket No. 224, Pl. Atty. Decl. ¶¶ 71-75, 166, 176-78; Docket
No. 225, Pl. Memo. at 8-9). Plaintiff discounts the documented pain scores of 0 or 99,
with those scores reflecting Mr. Southard’s inability to verbalize his condition (Docket
No. 224, Pl. Atty. Decl. ¶¶ 60-66, 88-159, 162). Mr. Southard was recorded as being
6
sedated (that is either entirely under sedation for a day or intermittently sedated) for 23
of his 118 days in VAMC, thus suffering throughout the 95 other days and making the
finding of only 58 days of conscious pain and suffering “hardly reflects the length and
gravity of Mr. Southard’s physical pain and suffering” (id. ¶ 162). If Defendant assumed
Mr. Southard was in excruciating pain (by administering pain medication daily during his
entire hospitalization), then Plaintiff invites this Court to “assume the same” (id. ¶ 67; see
id. ¶¶ 64, 65, 62-63). Plaintiff also faults Defendant for pain management, contending
that Mr. Southard was alert and complained of pain despite sedation (id. ¶¶ 76-78),
pointing to “sedation holidays” Mr. Southard was given in April and May 2009 to have him
more alert (id. ¶¶ 80-82).
Plaintiff points to Mr. Southard’s mental anguish from July 20, 2009, despite pain
reports noted in the medical record (id. ¶¶ 27-42). Plaintiff emphasized Mr. Southard’s
mental anguish, “forced to endure while he remained a prisoner in his own body” (id.
¶ 183), and forced (due to his bedsores and festering flesh) “to wallow in the stench of
his own rotting flesh” (id. ¶ 178). She argues that Mr. Southard was “in absolute mental
agony throughout every moment of his 118 days of consciousness, regardless of whether
or not he was experiencing physical pain” (Docket No. 225, Pl. Memo. at 9).
Plaintiff argues that this Court erred in discounting the last five days in which
Mr. Southard was in palliative care from consideration for his conscious pain and suffering
despite pain medication Mr. Southard was given during that care (Docket No. 224, Pl.
Atty. Decl. ¶¶ 43-59, 182).
As for the fear of his impending death, Plaintiff argues Mr. Southard endured this
every day from when his kidneys were killed (Docket No. 225, Pl. Memo. at 22, 20) rather
7
than Mr. Southard’s last eleven days as found in the Decision and Order, 2020 WL
3467423, at *37.
2. The Government’s Response (Docket Nos. 231, 232)
The Government responds that Plaintiff does not allege new facts in support of her
motion (Docket No. 232, Gov’t Atty. Decl. ¶¶ 11, 13), citing evidence already in the record
(id. ¶ 12). The Government claims that many of Plaintiff’s counsel’s assertions “are
unsupported argument and speculation and should not be considered” (id. ¶ 14). The
Government next argues that Plaintiff is improperly attempting to relitigate arguments
after the verdict rather than in a timely post-trial response (id. ¶ 21). The Government
notes this Court’s “meticulous findings regarding Mr. Southard’s pain and suffering based
upon analysis and careful consideration of the proof in the case” (id. ¶ 7), including this
Court’s consideration of Mr. Southard’s palliative care period, noting that he was
considered to have been comfortable (id. ¶ 24).
The Government contends that reconsideration is an extraordinary remedy and
requesting it should not be based upon relitigating arguments Plaintiff raised (or could
have raised) (Docket No. 231, Gov’t Memo. at 5). Plaintiff moving for reconsideration
also could not present new theories or otherwise take a second bite at the apple (id.). An
argument “raised for the first time on a motion for reconsideration are therefore untimely,”
Cruz o/b/o Vega v. Barnhart, No. 04 Civ. 9794, 2006 WL 547681, at *1 (S.D.N.Y. Mar. 7,
2006) (id.); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Stroh Cos., 265 F.3d 97,
115-16 (2d Cir. 2001). The Government argues that Plaintiff has not met the standards
for Rule 59(a)(1)(B) or (e) (id. at 6). On Plaintiff seeking reconsideration of Mr. Southard’s
suffering from bedsores, the Government contends that Plaintiff merely rehashes cases
8
or cases that she could have cited in her post-trial submissions (id. at 10-11), as well as
Plaintiff’s arguments for reconsidering Mr. Southard’s pain and suffering (id. at 12) and
his fear of impending death claim (id. at 15-16).
3. Plaintiff’s Reply (Docket Nos. 251, 252, 261)
Plaintiff replies that Mr. Southard suffered from physical pain, emotional agony,
and loss of enjoyment of life for 118 days of his hospitalization (Docket No. 252, Pl.
Revised Reply Memo. at 1-3), that he suffered more pain and suffering than in the
comparable cases cited in the Decision and Order (id. at 10-11). Mr. Southard also was
entitled to a greater recovery for impending doom and death because he was aware of
his situation longer than the eleven days acknowledged in the Decision (id. at 11-15).
She outlines Mr. Southard’s pain and suffering (id. at 2-9).
In her counsel’s reply
Declaration, Plaintiff details the impact of Mr. Southard’s confinement (Docket No. 261,
Pl. Atty. Revised Reply Decl. ¶¶ 4, 1-12, 13-29; see generally Docket No. 251, Pl. Atty.
Reply Decl.), with such effects as drastic weight changes (Docket No. 261, Pl. Atty.
Revised Reply Decl. ¶ 15), respiratory issues arising from use of the ventilator (id. ¶¶ 1821), Mr. Southard becoming incontinent and having anuria (id. ¶¶ 22-25), and enduring
breakthrough pain, agitation, depression and/or anxiety (id. ¶¶ 26-29).
Plaintiff claims that Mr. Southard should recover for the pain endured for the
entirety of his hospitalization (Docket No. 252, Pl. Revised Reply Memo. at 3-5). Plaintiff
next contends that use of pain medication did not eliminate all physical and emotional
pain to reduce recovery (id. at 5-9). She cites to the record in Kolerski v. United States,
No. 06CV422 (id., Ex. A, U.S. Proposed Findings of Fact ¶ 130), that the treating
physician in that case testified that controlled pain “is not the same as eliminated” (Docket
9
No. 252, Pl. Revised Reply Memo. at 9, quoting, Kolerski, supra, Ex. A, U.S. Proposed
Findings of Fact ¶ 130 (quoting Kolerski Trial Tr. at 483-84)).
Plaintiff distinguishes comparable cases cited in the Decision and Order (Docket
No. 252, Pl. Revised Reply Memo. at 10-11). She concludes that the damages are akin
to those found in Hyung Kee Lee v. New York Hosp. Queens, 118 A.D.3d 750,
987 N.Y.S.2d 436 (2d Dep’t 2014), of an average of over $1 million per day for the three
days of decedent’s hospitalization in that case (id. at 11). She concludes that “a verdict
of at least $10 million could reasonabl[y] [sic] be sustained for the 118 days of conscious
pain and suffering, including loss of enjoyment of life, experienced by Mr. Southard” (id.).
If this Court accepts Plaintiff’s methodology, however, a reasonable verdict also
could be over $118 million (or over a $1 million per day Mr. Southard endured pain and
suffering for the entire 118 days of his hospitalization), an unreasonably excessive
recovery.
On the other hand, Plaintiff does not explain how she reached at least
$10 million as reasonable compensation.
As for Mr. Southard’s impending death, Plaintiff argues that as soon as
Mr. Southard learned that the April 1 operation failed, and his kidneys were “killed” he
had the fear of his impending death (id. at 11-15; Docket No. 261, Pl. Atty. Revised Reply
Decl. ¶¶ 31, 41 (Mr. Southard was deemed “Ready to Learn” from April 6, 2009), 33, 42
(from May 20 conversation with son Howard “Sonny” Southard that doctors “killed” his
kidneys and they were “f’ing killing” him)). Plaintiff also notes that Mr. Southard had to
face the decision to in effect terminate his own life (Docket No. 252, Pl. Revised Reply
Memo. at 13).
10
4. Government Sur-Reply (Docket Nos. 257, 258)
The Government’s Sur-Reply notes that Plaintiff’s replacement Reply Declaration
should not be considered because it is signed by a different attorney than its purported
declarant (Docket No. 258, Gov’t Atty. Decl. ¶ 3). Plaintiff then moved for leave to
resubmit the Reply Declaration with a correct signature block (Docket No. 259, Pl. Atty.
Decl. ¶ 14). That motion was granted (Docket No. 260; see Docket No. 261, Pl. Atty.
Revised Reply Decl.), see Ceglia v. Zuckerberg, No. 10CV569, 2013 WL 1208558, at *3
n.3 (W.D.N.Y. Mar. 26, 2013) (Foschio, Mag. J.) (correcting wrong attorney’s name in
electronic signature block by refiling corrected paper), adopted, 2014 WL 1224574
(W.D.N.Y. Mar. 25, 2014) (Arcara, J.), aff’d, 600 F. App’x 34 (2d Cir. 2015). The mistake
in the declarant in counsel’s Declaration was a technical defect and had no effect on the
substance asserted in the Reply Declaration, see Grant v. Morgan Guar. Trust Co. of
N.Y., 638 F. Supp. 1528, 1531 n.6 (S.D.N.Y. 1986), and that defect is corrected (Docket
No. 261).
The Government counters that Plaintiff speculated about the degree of pain
Mr. Southard suffered during his hospitalization (Docket No. 258, Gov’t Atty. Decl. ¶¶ 610). The Government refutes Mr. Southard’s alleged weight gain, pointing to the medical
record where there was a question as to the accuracy of his weight (id. ¶ 14).
The Government concludes that this Court properly awarded pain and suffering
damages only for periods that showed Mr. Southard was conscious of his pain (Docket
No. 257, Gov’t Sur-Reply Memo. at 1-3, 5-6) and in excluding pain and suffering damages
during Southard’s palliative care (id. at 3-4). Thus, this Court properly awarded pain and
suffering damages for 58 of 89 days between April 25 to July 22, 2009 (id. at 1-4, 5-6,
11
14). The Government argues that Plaintiff failed to substantiate Mr. Southard’s loss of
enjoyment of life to warrant increasing his claimed pain and suffering (id. at 7-13). The
Government advocates adhering to the fear of impending death damages because
Plaintiff has not shown that Mr. Southard was keenly aware of his grim prognosis as of
April 8, 2009, or the other dates earlier than July 16, 2009, found by this Court (id. at 1314).
D. Plaintiff’s Amended Bill of Costs (Docket Nos. 235, 226)
On July 27, 2020, Plaintiff submitted her initial Bill of Costs, seeking a total of
$17,725.57 (Docket No. 226; see Docket No. 235, Pl. Reply Ex. B).
The Government argued that the costs for transcripts lacks substantiation and
should be denied (Docket No. 228, Gov’t Memo. at 3, 3-9). The Government claimed that
Plaintiff is seeking an excessive amount for the per page cost claimed (id. at 3-9). The
Government also objected to paying Plaintiff for the cost of copying an oral Decision and
Order of this Court as transcription costs (id. at 8). Next, the Government argued that
Plaintiff taxed copying charges inappropriately or at inflated per page rates (id. at 10-11).
The Government would have this Court reject the $2,690 in other costs taxed by Plaintiff
because Plaintiff failed to submit receipts from common carriers, hotel, and parking for
her experts (id. at 11-14). The Government concluded that Plaintiff is entitled only to a
total of $522.00 in costs that she substantiated (id. at 14).
Plaintiff duly replied with her amended Bill of Costs (Docket No. 235, Ex. A) with
attached receipts, charts, and other supporting documents (id. Exs. E, I, J, K. L), now
seeking to recoup $14,643.73 in total costs including the Clerk’s fee (Docket No. 235,
Ex. A, Pl. Atty. Reply Decl. at 11; see Docket No. 245, Pl. Response at 7). Plaintiff also
12
seeks $70.00 to recover service fees; a total of $9,143.90 for transcripts; $2,911.86 in
witness fees, travel, and lodging expenses for her expert witnesses; and $2,167.97 for
photocopying (Docket No. 235, Ex. A).
The Government then sought leave to file a Sur-Reply (Docket No. 236) which was
granted (Docket No. 237), and was due by December 1, 2020, and Plaintiff’s response to
it was due by December 15, 2020 (id.). In its Sur-Reply, the Government objected to
portions of the amended costs claimed, agreeing that Plaintiff should be entitled only to a
total of $12,062.43 (Docket No. 242, Gov’t Atty. Decl. ¶ 30). The Government renews its
objections to excessive transcript and duplication costs and questionable travel expense
entries claimed by Plaintiff (Docket Nos. 241, Gov’t Sur-Reply Memo., 242, Gov’t Atty.
Decl.).
In her response, Plaintiff justifies some of the claimed expenses, the costs for
deposition transcripts of Drs. Nader Djalal Nader and Barton Muhs and charging $.20 per
page for in-house duplication (Docket No. 245, Pl. Response ¶ 3). Plaintiff claims the
deposition transcription costs for Dr. Nader because she deems Dr. Nader to be a party
and, under Part II.D.1.c. of this Court’s “Guidelines for Bills of Costs,” the costs of this
deposition was necessary for use in the case and thus recoverable, even if that testimony
was not used at trial (id. ¶¶ 5-6, citing Fields v. General Motors Corp., 171 F.R.D. 234
(N.D. Ill. 1997); Bauta v. Greyhound Lines, Inc., No. 14-CV-3725 (RER), 2019 WL
8060181, at *4 (E.D.N.Y. June 17, 2019) (Reyes, Mag. J.).
Dr. Nader was the
anesthesiologist during Mr. Southard’s April 1, 2009, surgery and Operation Room
Manager (id. ¶¶ 4, 7, 5).
13
Plaintiff claims daily transcription for Dr. Muhs trial testimony was necessary (id.
¶¶ 9-12).
She points out that this trial was five weeks long and, under Bartels v.
Incorporated Village of Lloyd Harbor, CV 08-1256 AKT, 2012 WL 181633, at *2-4
(E.D.N.Y. Jan. 6, 2012) (Tomlinson, Mag. J.), daily copies of trial transcripts are
necessary.
She defends the $.20 per page in-house duplication rate, arguing that the
Consumer Price Index and the average pay for paralegals have increased from 1997 (id.
¶¶ 13-21, Exs. D-F) when $.10 per page was found to be reasonable (see Docket No. 235,
Pl. Atty. Reply Decl. ¶¶ 28-30, citing cases leading to 1997 origin for acceptance of $.10
rate, General Elec. Co. v. Compagnie Euralair, S.A., No. 96 CIV. 0884 (SAS), 1997 WL
397627, *6 (S.D.N.Y. May 27,1997) (Peck, Mag. J.) (Report & Rec.), adopted, 1997 WL
397627 (S.D.N.Y. July 3, 1997)). Since 1997, the United States Bureau of Labor of Labor
Statistics Consumer Price Index increased by 62.14% (id. ¶ 16, Ex. D). Comparatively,
Plaintiff points out that paralegals’ salaries also increased over 55% during that same 23year period (id. ¶ 20, Exs. E, F). Plaintiff concludes that her counsel’s $.20 per page inhouse rate is justified as the current going rate (see id. ¶ 21).
III.
Discussion of Motion for New Trial and Amend Judgment (Docket
No. 224)
A. Applicable Standards for Motion for New Trial and Amend Judgment
After a bench trial, this Court may, on motion (such as here) open the Judgment,
take additional testimony, amend findings of fact and conclusions of law or make new
ones, and direct the entry of a new Judgment, Fed. R. Civ. P. 59(a)(2). The grant of a
new trial or amendment to a judgment under Rule 59 rests on sound discretion of the trial
court, 11 Charles A. Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice &
14
Procedure—Civil § 2803 (2012), at 61-62, id., § 2804, at 66; Sequa Corp. v. GBJ Corp.,
156 F.3d 136, 143 (2d Cir. 1998) (see Docket No. 231, Gov’t Memo. at 3). The motion
here is timely, see Fed. R. Civ. P. 59(b), (e).
Rule 59(a)(1)(B) provides “the court may, on motion, grant a new trial on all or
some of the issues--and to any party--as follows: . . . (B) after a nonjury trial, for any
reason for which a rehearing has heretofore been granted in a suit in equity in federal
court.” (Docket No. 231, Gov’t Memo. at 3.) The motion is granted “only for substantial
reasons such as a ‘manifest error of law or mistake of fact,’” Guzik v. Albright,
No. 16CV2257 (JPO), 2020 WL 2611917, at *1 (S.D.N.Y. May 21, 2020), citing Ball v.
Interoceanica Corp., 71 F.3d 73, 76 (2d Cir. 1995) (quoting, in turn, 11 Federal Practice
& Procedure § 2804, at 53 (2d ed. 1995)) (id.). Analogizing Rule 61 standard, the Second
Circuit held that the grounds for granting a new trial “‘unless refusal to take such action
appears to the court inconsistent with substantial justice,’” LiButti v. U.S., 178 F.3d 114,
118-19 (2d Cir. 1999) (quoting Fed. R. Civ. P. 61) (id. at 3-4). The Rule 59(a)(1)(B) “is
not a vehicle for relitigating old issues, presenting the case under new theories, securing
a rehearing on the merits, or otherwise taking a ‘second bite at the apple,’” Sequa, supra,
156 F.3d at 144 (id. at 4).
Under Rule 59(e), essentially a motion for reconsideration, Guzik, supra, 2020 WL
2611917, at *1, this Court may alter or amend judgments “to correct a clear error of law
or prevent manifest injustice,” Collision v. Int'l Chem. Workers Union, Local 217, 34 F.3d
233, 236 (4th Cir.1994) (citation to quote omitted); Munafo v. Metropolitan Transit Auth.¸
381 F.3d 99, 105 (2d Cir. 2004).
15
Again, in this Federal Tort Claims Act case, the law of where the act or omission
occurred applies, Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492
(1962); Coolidge, supra, 2020 WL 3467423, at *1; here New York law, including its
calculation of damages, applies, Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 108182 (2d Cir. 1988); Coolidge, supra, 2020 WL 3467423, at *3. Once Plaintiff established
the Government’s negligence, “she is entitled to recover ‘a sum of money which will justly
and fairly compensate . . . [her] . . . for the loss resulting from the injuries sustained,’
Robinson v. U.S., 330 F.Supp.2d 261, 290 (W.D.N.Y. 2004) [Curtin, J.] (quoting Kehrli v.
City of Utica, 105 A.D.2d 1085, 1085, 482 N.Y.S.2d 189 (4th Dep't 1984)),” Furey v. U.S.,
458 F. Supp. 2d 48, 56 (N.D.N.Y. 2006); Coolidge, supra, 2020 WL 3467423, at*3.
Under New York law of pain and suffering damages, an award would not be set
aside “unless the awards deviate materially from what would be reasonable
compensation,” Perez v. Live Nation Worldwide, Inc., No. 158373/2013, 2020 N.Y. Misc.
LEXIS 3549, at *22 (N.Y. Sup. Ct., N.Y. County July 24, 2020) (citing N.Y. CPLR 5501(c)
and New York State cases); Kolerski, supra, 2008 WL 4238924, at *4; Coolidge, supra,
2020 WL 3467423, at *32. “The ‘reasonableness’ of compensation must be measured
against relevant precedents of comparable cases,” Kayes v. Liberati, 104 A.D.3d 739,
741, 960 N.Y.S.2d 499, 501 (2d Dep’t 2013); Perez, supra, 2020 N.Y. Misc. LEXIS 3549,
at *23, with these prior cases, while not binding upon this Court, provide guidance and
enlightenment in concluding whether the award constitutes reasonable compensation,
see Miller v. Weisel, 15 A.D.3d 458, 459, 790 N.Y.S.2d 189, 190 (2d Dep’t 2005); Perez,
supra, 2020 N.Y. Misc. LEXIS 3549, at *23.
“Crucially, the amount constituting
‘reasonable compensation’ must be assessed with due regard to the ‘circumstances
16
presented,’” Perez, supra, 2020 N.Y. Misc. LEXIS 3549, at *23 (quoting Luna v. New York
City Tr. Auth., 116 A.D.3d 438, 438, 986 N.Y.S.2d 329, 329 (1st Dep’t 2014)). Perez held
that determining reasonable compensation also includes factoring in increased cost of
living, medical and personal care, and “the better medical and scientific understanding of
the severity of certain injuries,” Perez, supra, 2020 N.Y. Misc. LEXIS 3549, at *23, after
the precedents were rendered and to not have courts adopt by rote prior damage
precedents, id.
B. Conscious Pain and Suffering
This Court next considers Plaintiff’s claims for Mr. Southard’s conscious pain and
suffering and his fear of impending death, focusing on the duration of each of these
injuries.
Initially a note of what Plaintiff is not contending. She does not object to the liability
findings, that this Court found the Government was negligent in the care of Mr. Southard
and that negligence led to his injuries and death. She is not seeking to adduce new
testimony or evidence to establish her damages claim; Plaintiff relies upon the evidence
already before this Court at trial in arguing for amendment of the Judgment and for
additional damages. Thus, so much of her motion (Docket No. 224) seeking a new trial
is denied. This Court can proceed to determine whether to amend the Judgment without
reopening the trial or seeking additional evidence.
Plaintiff also does not object to other portions of the damage analysis, totaling
$8,773.64 for Mr. Southard’s funeral expenses (less offset for VA death benefits received)
and loss to his decedents of Mr. Southard’s direction, guidance, and financial support.
17
1. The Duration of Conscious Pain and Suffering
Plaintiff is correct that Mr. Southard suffered during the 60 days he was noted as
being alert and not in pain in the medication record and during his final days in palliative
care. This is despite the Government’s contention that Mr. Southard was not conscious
of his pain and suffering, for example from April 1 through 24, 2009, or specific days
thereafter when the record noted that he was resting comfortably (Docket No. 257, Gov’t
Sur-Reply Memo. at 1-2, 3-4). The Government (id. at 2) cites the New York State
Supreme Court, Appellate Division, Second Department’s decision in Haque v. Daddazio,
84 A.D.3d 940, 922 N.Y.S.2d 548 (2011), that the decedent needed to be conscious to
recover for her pain and suffering. In Haque, decedent was struck attempting to cross
Route 9 but not at an intersection or crosswalk, 84 A.D.3d at 941, 922 N.Y.S.2d at 549.
To establish that decedent did not endure conscious pain and suffering, defendant there
stated that she was rendered unconscious immediately following the accident and
remained so until her death eight hours later, id., 84 A.D.3d at 941, 922 N.Y.S.2d at 549.
The Second Department affirmed the dismissal of the conscious pain and suffering claim
in Haque because the plaintiff “did not address the issue of whether the decedent
experienced any level of cognitive awareness following the accident,” id., 84 A.D.3d at
941, 942, 922 N.Y.S.2d at 550 (holding plaintiff failed to justify reconsideration by the
Supreme Court of its initial grant of summary judgment to defendant).
This Court reaffirms its earlier finding (Docket No. 220, Coolidge, supra, 2020 WL
346723, at *29, 32) that New York law does not require a litigant or decedent have full
consciousness of his pain and suffering where he is sedated to ameliorate the effects of
pain. New York courts recognized that a litigant needs to have only “some level of
18
awareness,” 1B N.Y. PJI 2:280, at 925 (2020), or “any level of cognitive awareness” as
held in Haque, supra, 84 A.D.3d at 941, 922 N.Y.S.2d at 550. Adhering to that earlier
finding (Docket No. 220, Coolidge, supra, 2020 WL 346723, at *36), Mr. Southard was
conscious of his pain and suffering, manifested by his agitation as observed by VAMC
medical staff and other witnesses. This Court originally calculated the number of days of
conscious pain and suffering from the total number of days Mr. Southard manifested pain
or discomfort that was noted in his medical charts, when he was agitated, and when he
was undergoing surgical procedures under anesthesia (id.), while excluding dates in
which the medical record indicated that he was alert and did not indicate being in pain
(id.).
Reasons exist for this Court to reexamine its findings about the duration
Mr. Southard’s pain and suffering. Substantial justice requires that Plaintiff receive a full
recovery for her reasonable damages for Mr. Southard’s pain and suffering to avoid
manifest injustice. A new trial, however, is not required, as Plaintiff has not alleged new
facts or evidence not introduced at trial (Docket No. 232, Gov’t Atty. Decl. ¶ 11) to warrant
a renewed trial, but the Judgment here will be amended to prevent manifest injustice.
Plaintiff here closely examined the medical record (despite Defendant’s reliance
solely on pain monitoring reports within that record), finding instances when Mr. Southard
endured pain not otherwise recorded in the pain monitoring reports (see generally Docket
No. 224). In her revised Reply, Plaintiff points out aspects of Mr. Southard’s pain and
suffering from his confinement, his loss of enjoyment of life, and his loss of independence
(Docket No. 261, Pl. Atty. Revised Reply Decl. ¶¶ 4, 5, 10-12). Despite the sedation
reports showing Mr. Southard had “0” or “99” in the pain monitoring reports, Plaintiff
19
contends that Mr. Southard still suffered from pain and suffering (manifested by drastic
weight changes, bedsores, anuria and incontinence, and respiratory issues due to use of
the ventilator for the entirety of his hospitalization) (id. ¶¶ 5, 13-29).
Given Mr. Southard’s intubation from the outset of his hospitalization, Mr. Southard
never used his mouth again to eat or drink after April 2, 2009. In Hyung Ki Lee v. New
York Hospital Queens, 35 Misc.3d 1225(A), 953 N.Y.S.2d 549 (Sup. Ct. Queens County
2012), aff’d sub nom. Hyung Kee Lee v. New York Hosp. Queens, supra, 118 A.D.3d 750,
987 N.Y.S.2d 436, the State Supreme Court accepted plaintiff’s argument that because
the decedent there could not eat solid food or drink for four days in preparation for a
gallbladder surgery that eventually never occurred, that decedent endured pain and
suffering. That court held that decedent’s hunger and dry and sticky mouth, coupled with
the delay and the pain from the deprivation of treatment, “constitutes pain and suffering
of sufficient magnitude as to merit an appreciable component of damages,” Hyung Ki Lee,
supra, 35 Misc.3d at 1225(A), 953 N.Y.S.2d at 549. Other courts in New York recognize
the inability to eat or drink as a manifestation of conscious pain and suffering, Malki v.
Krieger, 213 A.D.2d 334, 334, 624 N.Y.S.2d 167, 169 (1st Dep’t 1995) (pain and suffering
award, as reduced to $4 million, in medical malpractice action held reasonable
compensation including six months plaintiff without an esophagus and connected to
feeding tube); Wolfe v. General Mills, Inc., 35 Misc.2d 996, 1000-01, 231 N.Y.S.2d 918,
923 (Sup. Ct. Erie County 1962) (where plaintiff lost senses of taste and smell in accident,
denying defense motion to reduce verdict); see also Atkinson v. Buch, 17 A.D.3d 222,
222, 793 N.Y.S.2d 39, 40 (1st Dep’t 2005) (dental malpractice action, court increased past
20
pain and suffering award from $10,000.00 to $75,000.00 where, among other things,
plaintiff could only eat through a straw).
Plaintiff also points out that Mr. Southard suffered from back pain and bedsores
during parts of the 118 days, from May 3, 2009 (see Docket No. 224, Pl. Atty. Decl. ¶ 72)
as well as enduring mental anguish while remaining a prisoner of his body (id. ¶¶ 183,
52). This Court, however, is disregarding Plaintiff’s claim of Mr. Southard undergoing
weight change given the factual dispute whether the record correctly indicated his weight
(cf. Docket No. 258, Gov’t Atty. Decl. ¶ 14). Finally, despite palliative care given to
Mr. Southard, Plaintiff has established that he still suffered conscious pain during his final
five days of life (id. ¶¶ 56-58, 182).
As a result, this Court now amends its findings and the Judgment and finds that
Mr. Southard endured conscious pain and suffering (or received sedation to alleviate such
pain) for the entire 118 days of his hospital stay for various conditions in their totality (such
as pain and suffering indicated in Mr. Southard’s medical record, inability to eat and drink
on his own by mouth, persistent bedsores from May 2009, the consistent administration
of sedatives by VAMC staff for the entirety of the hospitalization, and the mental anguish
of being imprisoned in his failing body) arising from Defendant’s negligence in the
treatment of his kidneys. For example, during Mr. Southard’s final days under palliative
care, he still lacked the ability to eat and drink by mouth. Therefore, this Court will not
distinguish Mr. Southard’s palliative care period from the rest of his hospitalization.
2. The Rate
Plaintiff does not challenge this Court’s methodology in forming a daily rate to
quantify damages for Mr. Southard’s pain. Given New York State damages law and to
21
determine a reasonable compensation by comparing state court judgments, this Court
created a formulation, by averaging the amounts awarded in comparable cases that are
close to the facts of Mr. Southard’s circumstances by the amount of time of hospitalization,
Coolidge, supra, 2020 WL 3467423, at *34, 38 (impending death). Plaintiff did not fault
this method for calculation of Mr. Southard’s pain and suffering damages (that is
averaging the comparable damage awards to a per day rate and multiplying that rate by
the number of days Mr. Southard was in conscious pain and suffering). She disagreed
with the comparable cases, disputing the precedent relied upon to calculate that rate.
This Court adheres to the case comparison made in the Decision and Order, Coolidge,
supra, 2020 WL 3467423, at *33-34, that led to finding the reasonable rate of $30,000.00
per day, id. at *36, renewing the caveat that Mr. Southard’s hospitalization was unique
and lacked a true analogy in federal or New York case law.
Plaintiff renews her argument that the cases this Court relied upon are not
comparable, but rests upon the Second Department decision of Hyung Kee Lee v. New
York Hosp. Queens, supra, 118 A.D.3d 750, 987 N.Y.S.2d 436, concluding that an
average of over $1 million per day for the three days of decedent’s hospitalization is the
reasonable compensation for pain and suffering (Docket No. 252, Pl. Revised Reply
Memo. at 10-11).
Plaintiff argues that this Court should not have relied upon the Summary Order
from the Second Circuit in Scullari v. United States, Nos. 99-6160(L), 99-6219(XAP),
2000 U.S. App. LEXIS 3416 (2d Cir. Feb. 24, 2000), in establishing reasonable
compensation (Docket No. 225, Pl. Memo. at 3-7); cf. Coolidge, supra, 2020 WL 3467423,
at *29. This Court cited Scullari, however, to reject Defendant’s notion that Plaintiff had
22
to establish pain without any sedation in order to recover for Mr. Southard’s pain and
suffering, Coolidge, supra, 2020 WL 3467423, at *29, acknowledging (as did the Second
Circuit in Scullari) that New York courts take into account the degree of sedation the
subject endured in assessing pain and suffering awards, id. This Court, however, did not
factor in the damages awarded in Scullari as a comparative to determine Mr. Southard’s
damages.
Plaintiff distinguished the comparable cases because the duration of loss in these
cases was far briefer than Mr. Southard’s hospitalization (Docket No. 225, Pl. Memo.at
13-16), a point conceded by this Court, Coolidge, supra, 2020 WL 3467423, at *33, 34.
Plaintiff also argues these cases are factually distinguishable (Docket No. 225, Pl. Memo.
at 14-16; Docket No. 252, Pl. Revised Reply Memo. at 10). She cites to bedsore cases
in which patients were awarded pain and suffering for enduring less than a month of
bedsores (Docket No. 225, Pl. Memo. at 8), O’Connor v. Kingston Hosp., 166 A.D.3d
1401, 1404, 88 N.Y.S.3d 679, 681, 683 (3d Dep’t 2018) (upholding judgment awarding
$500,000.00, less setoff, for pain and suffering from bedsores for hospitalizations of about
a month); Parson v. Interfaith Med. Ctr., 267 A.D.2d 367, 368, 369, 700 N.Y.S.2d 224,
225, 226 (2d Dep’t 1999) (reducing award of $1 million to $400,000 for bedsore-related
pain and suffering, for an unstated period of hospitalization).
Otherwise, Plaintiff does not suggest a different rate, merely concluding that the
damage award should be increased to an unspecified amount, or a new trial ordered (see
Docket No. 225, Pl. Memo. at 16, 22).
There is a difficulty in comparing New York cases because of the dearth of analysis
as to why a given amount is deemed reasonable compensation in that case. New York
23
State appellate courts defer to jury determinations “recognizing that damage awards for
pain and suffering are inherently subjective and not subject to precise quantification or
formulas,” Garrison v. Lapine, 72 A.D.3d 1441, 1443, 900 N.Y.S.2d 770, 772 (3d Dep’t
2010); O’Connor, supra, 166 A.D.3d at 1404, 88 N.Y.S.3d at 683. Often state courts alter
verdicts without stating reasons save an appellate court declaration that the amount
awarded was not reasonable compensation and choosing another figure presumed
reasonable. A recent decision in Perez gives some insight, with that court factoring in
inflation to existing cases to determine the reasonable compensation for past and future
pain and suffering, 2020 N.Y. Misc. LEXIS 3549, at *22-28. Again, there is no strict
formula for determining pain and suffering, see, e.g., Garrison, supra, 72 A.D.3d at 1443,
900 N.Y.S.2d at 772.
Despite Plaintiff’s arguments, this Court adheres to the case comparisons it made
and the averages of damages to form the rate of compensation applicable here.
3. Calculation of Damages
This Court considered the cases cited by Plaintiff in forming the daily rate to
compensate for Mr. Southard’s pain and suffering. Plaintiff, however, differs as to the
amounts to be applied.
This Court adheres to the daily rate of $30,000.00 as the
reasonable value of what Mr. Southard suffered per day, Coolidge, supra, 2020 WL
3467423, at *36.
For example, applying (as Plaintiff argues) Hyung Kee Lee and its average of over
$1 million per day for that decedent’s suffering to Mr. Southard’s pain and suffering
(Docket No. 252, Pl. Revised Reply Memo. at 11) would be excessive, leading to over
$118 million awarded for the extent of his hospitalization. Plaintiff herself argues that
24
$10 million would be reasonable for pain and suffering damages (id.) without much
analysis how she reached that far lower figure.
With the thus established rate at $30,000.00 per day and duration now found to be
the full 118 days of his hospitalization for the several impositions of pain and suffering,
Mr. Southard’s damages for conscious pain and suffering totals $3,540,000.00. Plaintiff’s
Motion (Docket No. 224) for entry of an Amended Judgment is granted in part.
C. Fear of Impending Death
Damages for fear of impending death is a subset of a decedent’s pain and
suffering, see 1B N.Y. PJI 2:320, at 1025 (3d ed. 2020) (caveat 3, compensating injuries
sustained by decedent before he or she died, the estate may recover “pre-impact terror”);
Matter of 91st St. Crane Collapse Litig., 154 A.D.3d 139, 153, 62 N.Y.S.3d 11, 21 (1st
Dep’t 2017). Compensation in this vein is for contemplation of one’s impending death not
eventual mortality or possible death. It is “designed to compensate the decedent’s estate
for the fear the decedent experienced during the interval between the moment the
decedent appreciated the danger resulting in the decedent’s death and the moment the
decedent sustained a physical injury as a result of the danger,” 1B N.Y. PJI 2:320, at
1025; see Vatalaro v. County of Suffolk, 163 A.D.3d 893, 894-95, 81 N.Y.S.3d 441, 443
(2d Dep’t 2018) (quoting PJI); Matter of 91st St. Crane Collapse Litig., supra, 154 A.D.3d
at 153, 62 N.Y.S.3d at 21-22. “There must be some evidence that the decedent perceived
the likelihood of grave injury or death before the impact, and suffered emotional distress
as a result,” Matter of 91st St. Crane Collapse Litig., supra, 154 A.D.3d at 153, 62 N.Y.S.3d
at 21-22.
25
This Court found that Mr. Southard was aware of his impending death on July 16,
rather than earlier when his kidneys were “killed” (as Plaintiff terms it) or from the start of
his 118 days of hospitalization.
Plaintiff renewed her argument that Mr. Southard
contemplated his death from April 2009 (when VA medical staff concluded that he was
“ready to learn”) or from May 20, 2009, when he talked with Sonny Southard realizing that
Defendant killed his kidneys and effectively “f’ing killed” him. This is distinct from the
general pain and suffering Mr. Southard endured (cf. Docket No. 232, Gov’t Atty. Decl.
¶ 24). Plaintiff, however, does not specify when the kidneys were “killed” (cf. Docket
No. 238, Pl. (Initial) Reply Memo. at 22), either during the April 1 operation or when it
became clear that the kidneys would not heal, and Mr. Southard would require permanent
dialysis. Plaintiff has not pointed to evidence of Mr. Southard being aware of his grim
prognosis from April 8 (see Docket No. 257, Gov’t Sur-Reply Memo. at 13).
Mr. Southard’s son, Sonny, testified that at some unspecified period, Mr. Southard
was told about the condition of his kidneys and mouthed “oh, my God, they F’ing killed
me,” Coolidge, supra, 2020 WL 3467423, at *11. Plaintiff now argues this occurred on
May 20 (Docket No. 261, Pl. Atty. Revised Reply Decl. ¶¶ 33, 42, citing Docket No. 155,
Sonny Southard Tr. at 60; Docket No. 157, Dr. Lall Tr. of Mar. 29, 2018, at 109; Jt. Tr.
Ex. 113, Bates #6938 (anesthesia post-op note, May 15, 2009). But Dr. Lall’s testimony
referred to Mr. Southard not wanting to continue dialysis in June 2009 and declining
further treatment in July while still wanting full resuscitation (Docket No. 157, Dr. Lall Tr.
of Mar. 29, 2018, at 107-10).
Either when Defendant purportedly “killed” the kidneys or when Mr. Southard
mouthed his reaction are immaterial. For the fear of impending death claim, Plaintiff had
26
to establish when Mr. Southard was aware of his imminent mortality, see Matter of 91st
St. Crane Collapse Litig., supra, 154 A.D.3d at 153, 62 N.Y.S.3d at 21-22. This differs
from when he became aware of the extent of his injury that caused the mortality occurred.
Plaintiff next argues that Mr. Southard was “ready to learn” on April 8 (Docket
No. 261, Pl. Atty. Revised Reply Decl. ¶ 31, citing Jt. Tr. Ex. 113, Bates #7523-24). The
cited medical record, however, is a fall risk assessment. In other parts of Mr. Southard’s
medical record, there was a Learning Needs Review which noted Mr. Southard had “no
barriers” to learning prior to the surgery on March 26, 2009, but later was unable to
respond and to grasp concepts on April 18, 2009 (Jt. Tr. Ex. 113, Bates #7346, Apr. 18,
2009). The April 8, 2009, notation was education about orientation of time and place and
explanation of procedures (id. Bates #7346).
This Court reviewing Mr. Southard’s
progress notes for April 8 did not note education on his condition or mortality.
By April 8, VAMC doctors themselves had not concluded that Mr. Southard
imminently faced death. Thus, the record does not discuss Mr. Southard was ready to
learn and what he was ready to learn in April 2009. Prior to July 16, VAMC medical staff
held out hope that Mr. Southard could survive on dialysis. Initially, dialysis was thought
to be temporary as he recovered from the surgery (Docket No. 151, Dr. Dosluoglu Tr. at
78; Docket No. 157, Dr. Lall Tr. of Mar. 29, 2018, at 42). Doctors then concluded that Mr.
Southard would have to remain on dialysis for the duration of his life (see Docket No. 155,
Sonny Southard Tr. at 56, 57).
Plaintiff cites to Mr. Southard’s anxiety on May 14, 2009, that he was aware as of
that date of his “deplorable condition and was fearful of his demise” (Docket No. 224, Pl.
Atty. Decl. ¶ 128). While the medical record noted Mr. Southard’s anxiety and their
27
medication to treat it (see id. ¶¶ 124, 127), the evidence did not state that this anxiety
arose from his fear of death or of impending death. Plaintiff’s allegation of Mr. Southard’s
fear of his demise at this period is speculative on Plaintiff’s part. Again, the only evidence
of Mr. Southard possibly considering his mortality while hospitalized is Sonny Southard’s
testimony that his father learned (at some unspecified date) that Defendant had “killed”
his kidneys and Mr. Southard thus would have to remain on dialysis (Docket No. 155,
Howard “Sonny” Southard Tr. at 60 (Mr. Southard mouthing “oh, my God, they F’ing killed
me”); see Docket No. 205, Pl. Am. Proposed Findings of Fact ¶¶ 346-48), Coolidge,
supra, 2020 WL 3467423, at *11.
There is evidence of Mr. Southard’s reactions to learning that he had to remain on
dialysis and that he feared his imminent death if dialysis were terminated. These are two
distinct matters. On June 15 and 16, 2009, Mr. Southard indicated that he did not want
to continue on dialysis but then apparently did not realize he had kidney failure. Upon
being advised of the necessity of dialysis for his survival, he agreed to continue dialysis.
(Docket No. 197, Gov’t Proposed Findings of Fact ¶ 162; Jt. Tr. Ex. 113, Bates #5561-63
(June 16, 2009, psychological consult notes); Docket No. 172, Dr. Lall Tr. at 23-26; Jt. Tr.
Ex. 113, Bates #6330 (June 18, 2009, progress note).) On July 22, 2009, Plaintiff was
included in a family conference where Dr. Lall told them that further dialysis would be
futile given his infections, Coolidge, supra, 2020 WL 3467423, at *20-21.
Plaintiff now argues that Mr. Southard knew (at the latest) on June 15, 2009, that
if he were taken off dialysis it would lead to his death (see Jt. Tr. Ex. 113, Bates #6338,
6348-49, 6364). On that day, Dr. Lall noted that Mr. Southard stated that Mr. Southard
no longer wanted renal support (Jt. Tr. Ex. 113, Bates #6364). On June 16, 2009, was
28
the earliest Mr. Southard was aware of his mortality, or at least his need for dialysis to
continue to live. Dr. Lall talked with Mr. Southard, who was awake and alert, explaining
to him “about his hospital course thus far, and that HD [dialysis] is life saving, he became
very emotional” (Docket No. 238, Pl. Atty. Reply Decl. ¶ 23; Jt. Tr. Ex. 113, Bates #6338).
Mr. Southard repeated his statement that he no longer wanted to be on dialysis (Jt. Tr.
Ex. 113, Bates #6348-49). He stated that he understood that he suffered from kidney
failure (id.).
The neuropsychologist Dr. Kerry Donnelly, Ph.D., however, noted that
Mr. Southard’s awareness of his condition was “somewhat equivocal in his understanding
of his kidney disease,” at first stating that he was uncertain whether he knew he had
kidney failure and later responded that he knew (Jt. Tr. Ex. 113, Bates #6348).
Mr. Southard repeated and forcefully stated that he wanted to end dialysis, indicating that
“he knows what dialysis is” (id.). He affirmed that he wanted to be comfortable without
dialysis (id.). “Despite these consistent responses opposing dialysis, he also repeatedly
indicated that he does not want to make his own decisions about treatment and wants his
daughter to make them for him” (id.). Mr. Southard also wanted to remain on a ventilator
(id.).
Dr. Donnelly also observed that while Mr. Southard appeared able to make
healthcare decisions but his capacity “clearly waxes and wanes” (id., emphasis in original
removed). Therefore, there is an inconsistency, that Mr. Southard wanted only to end
dialysis but without terminating his life and that he did not necessarily understand his
mortality if dialysis ended.
Plaintiff has not shown Mr. Southard manifested fear of his impending demise
between June 16 and July 16, 2009. Again, the standard is fear of his imminent death.
Instead, Plaintiff established a distress of four weeks in June and July 2009 that cannot
29
be distinguished from other sources of anguish and anxiety compensated generally for
Mr. Southard’s pain and suffering.
As his sepsis worsened in July 2009, however, it became clear that Mr. Southard
remaining on dialysis was counterproductive (Docket No. 156, Tona Williams Tr. at 11112, 113, 44; Docket No. 155, Sonny Southard Tr. at 73). On July 15, Mr. Southard had
another discussion with hospital ethicist Dr. Donnelly about his condition, stating that he
no longer wanted to be kept alive by artificial means (Docket No. 197, Gov’t Proposed
Findings of Fact ¶ 176; Jt. Tr. Ex. 113, Bates #5529-30). This is the earliest expression
that his life hinged on whether he remained on dialysis. Before this, the discussion was
whether Mr. Southard understood what dialysis was and whether he realized he had
kidney failure and his equivocal answers.
It was then that Mr. Southard thus had
awareness that he was being sustained by artificial means. But it was the next day, when
confronted with what would occur if those artificial means were ceased, Mr. Southard was
“floored” by the prospect (Docket No. 197, Gov’t Proposed Findings of Fact ¶ 177; Jt. Tr.
Ex. 113, Bates #6015-17). Mr. Southard acknowledged on July 16 that without dialysis
he might possibly die (Docket No. 197, Gov’t Proposed Findings of Fact ¶ 177; Jt. Tr.
Ex. 113, Bates #6016). This is the point when his fear of impending death commenced.
This belies Plaintiff’s argument that earlier Mr. Southard had the impression of his
imminent death, because his condition was not dire, or he did not know what would
happen to him if dialysis ceased.
The cases cited by Plaintiff (Docket No. 225, Pl. Memo. at 16-21) for recovery for
the fear of impending death did not involve prolonged periods of time (beyond hours) or
contemplation running from the beginning of protracted hospitalization. These cases are
30
examples of the typical catastrophic injury leading to nearly instantaneous death, Matter
of 91st St. Crane Collapse Litig., supra, 154 A.D.3d at 153-54, 62 N.Y.S.3d at 21-22 (crane
collapse and fall of victims, reducing jury award of $7.5 million to each estate for preimpact
terror to $2.5 million and $2 million respectively); Dowd v. New York City Transit Auth.,
78 A.D.3d 884, 885, 911 N.Y.S.2d 460, 461-62 (2d Dep’t 2010) (decedent hit by reversing
bus twice, seeing bus and attempting to get out of the way, dying over an hour and a half
after the collision, holding award for conscious pain and suffering deviated from what was
deemed reasonable compensation, reducing $1.75 million awarded to $1.2 million or
ordering new trial); DeLong v. Erie County, 89 A.D.2d 376, 455 N.Y.S.2d 887 (4th Dep’t
1982) (12 minutes of pain, suffering, and fear of impending death by murdered
housewife), aff’d, 60 N.Y.2d 296, 469 N.Y.S.2d 611 (1983); Campbell v. Diguglielmo,
148 F. Supp. 2d 269, 273, 276 (S.D.N.Y. 2001) (shooting of decedent where decedent
look horrified and yelled no at shooter before being shot, then conscious a short time after
being shot); McIntyre v. United States, 447 F. Supp. 2d 54, 119 (D. Mass. 2006)
(decedent first strangled and then asked if he preferred being shot, decedent choosing to
be shot)(Docket No. 225, Pl. Memo. at 16-20). See also Vatalaro, supra, 163 A.D.3d at
893-94, 895, 81 N.Y.S.3d at 442, 443 (not cited by Plaintiff here), where the court reduced
the pre-impact terror award from $250,000.00 to $50,000.00 in decedent’s motor vehicle
accident for one second of eye contact with the colliding bus driver. Compared with
Mr. Southard’s circumstances, these cases are nearly instantaneous pre-impact terror,
see 1B N.Y. PJI 2:230, at 1025, in contrast to Mr. Southard’s days near the end knowing
his fate.
31
This Court has found no case of a decedent with prolonged knowledge (whether
days or weeks, as Plaintiff argues) of their eventual death like Mr. Southard.
The
Government also argued that two of Plaintiff’s cases, Campbell, supra, 148 F. Supp. 2d
269, and McIntyre, supra, 447 F. Supp. 2d 54, are irrelevant because Campbell was
factually distinguishable from Mr. Southard’s circumstances (Docket No. 231, Gov’t
Memo. at 15-16), with Campbell involving a shooting of the decedent leading to his death
(id.). This Court agrees that Campbell is factually distinguishable, both from the manner
of death and the amount of time the victim could have contemplated his demise. The
Government also urges McIntyre be rejected because Plaintiff should have argued that
case in her earlier post-trial submissions rather than taking the second bite of the apple
to argue it now on reconsideration (id. at 16), hence waiving that argument. Giving
McIntyre consideration, this Court finds that it is factually distinguishable from this case
again due to the manner of death and the duration of time the decedent had to consider
his demise.
Plaintiff also distinguishes Arias v. State, 33 A.D.3d 951, 822 N.Y.S.2d 727 (2d
Dep’t 2006), because that case did not involve the fear of impending death and that
decedent suffered less pain than Mr. Southard did (Docket No. 225, Pl. Memo. at 22;
Docket No. 252, Pl. Revised Reply Memo. at 10). This Court, however, did not cite Arias
for that damage claim, Coolidge, supra, 2020 WL 3467423, at *33, 34; that case was cited
for holding that conscious pain and suffering is recoverable and used its formulation to
devise the reasonable damage award for Mr. Southard, id. at *34.
Plaintiff also factually distinguishes Mancuso v. Kaleida Health, 172 A.D.3d 1931,
100 N.Y.S.3d 469 (4th Dep’t), aff’d, 34 N.Y.3d 1020, 114 N.Y.S.3d 502 (2019), because
32
the decedent there did not face the same choice that Mr. Southard did (Docket No. 252,
Pl. Revised Reply Memo. at 10). Again, this Court concedes that there is no other case
on fours with Mr. Southard’s hospitalization and death, Coolidge, supra, 2020 WL
3467423, at *33, in the duration and extent of pain and suffering endured by a decedent.
This Court notes that Plaintiff originally cited to Mancuso as a comparative (Docket
No. 200, Pl. Proposed Conclusion of Law ¶ 158) although noting that Mr. Southard
experienced longer and more pain than the decedent in Mancuso (id. ¶¶ 159, 160 (no
indication the decedent in Mancuso lost his ability to speak)). Plaintiff had concluded that
if this case and Mancuso were deemed equivalent, “Mr. Southard’s pain and suffering
alone of $3 million, given that Mr. Southard experienced exactly three (3) times the length
of pain and suffering” (id. ¶ 161).
The sole case in New York law involving more than instantaneous
acknowledgement of impending death is Mancuso, also arising in a medical malpractice
context where decedent had about a month from diagnosis of symptoms to his death
which the Fourth Department included having “thoughts of her impending death,”
172 A.D.3d at 1936, 100 N.Y.S.3d at 474. This Court relied on Mancuso (among other
New York cases) as “informative in quantifying the pain and suffering Mr. Southard
endured for the 118 days of his hospitalization (despite Mancuso post-dating Southard’s
hospitalization),” Coolidge, supra, 2020 WL 3467423, at *34. Factually, the decedent in
that case is the closest to what Mr. Southard endured during the last weeks of his
hospitalization.
Extrapolation of damages in Plaintiff’s cited comparative cases with close to
applicable facts from moments or days impending death case, e.g., DeLong, supra,
33
89 A.D.2d 376, 455 N.Y.S.2d 887 (Docket No. 225, Pl. Memo. at 17), to weeks or (if
accept Plaintiff’s view, 118 days) Mr. Southard contemplated his demise, is not
reasonable compensation and would lead to an excessive recovery for Plaintiff. As noted
above, New York appellate courts have reduced these pre-impact terror awards, e.g.,
Vatalaro, supra, 163 A.D.3d at 893-94, 895, 81 N.Y.S.3d at 442, 443; Matter of 91st St.
Crane Collapse Litig., supra, 154 A.D.3d at 154, 62 N.Y.S.3d at 22 ($7 million verdict
reduced to $2.5 million and $2 million) (cf. Docket No. 225, Pl. Memo. at 16-17).
Therefore, this Court reaffirms that the evidence shows that Mr. Southard only
knew on July 16, 2009, that he would not survive, and that continued dialysis would have
been futile, Coolidge, supra, 2020 WL 3467423, at *37. While Mr. Southard was anxious
prior to that (and that anxiety is covered by another form of awarded damages), there is
no evidence that this earlier anxiety was due to his impending death or Mr. Southard’s
realization of his impending death during the entirety of his 118-day hospitalization.
Plaintiff has not produced evidence that Mr. Southard contemplated his death during the
entirety of his stay. To find otherwise would be sheer speculation.
Therefore, the damage award for Mr. Southard’s consciousness of his impending
death of $366,663.00, as previously calculated, id. at *38, remains as found by this Court.
Plaintiff’s Motion to Alter or Amend the Judgment on this form of relief (Docket No. 224)
is denied.
D. Plaintiff’s Total Damages
Plaintiff does not challenge the other aspects of the damages award (or disputed
by the Government) also remain as previously found. As a result of consideration of
Plaintiff’s Motion to Alter or Amend the Judgment (id.), Plaintiff’s award for Mr. Southard’s
34
pain and suffering is now $3,540,000.00; the award for his consciousness of his
impending death remains at $366,663.00; his funeral expenses and losses by his
decedents are unchallenged and remain at a total of $8,773.64. Therefore, Plaintiff’s
Motion to Alter or Amend the Judgment (Docket No. 224) is granted and the total
damages is now $3,915,436.64.
IV.
Discussion of Plaintiff’s Amended Bill of Costs (Docket No. 235, Ex. A)
Finally, Plaintiff submitted (Docket No. 226) and then amended (Docket No. 235,
Ex. A) her Bill of Costs. She now seeks to recover $14,643.73 in costs. The Government
objects on several discrete grounds, ultimately concluding that Plaintiff is entitled only to
$12,062.43 (Docket No. 242, Gov’t Atty. Sur-Reply Decl. ¶ 30). As amended, the parties
differ over $2,581.30 in claimed costs.
A. Applicable Standards for Recovery of Costs
Under Federal Rule of Civil Procedure 54(d)(1), costs may be imposed against the
United States “only to the extent allowed by law.” Section 1920 of 28 U.S. Code provides
the taxable costs allowed generally and this Court by Local Civil Rule provides guidance
on imposition of costs, W.D.N.Y. Loc. Civ. R. 54. (Docket No. 228, Gov’t Memo. at 1-2.)
The Court Clerk assesses Plaintiff’s costs based upon Plaintiff’s declaration, information
within the Clerk’s special knowledge, and the Government’s objections, see 10 Charles
A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2679, at
492-93 (Civil 2014). The Court Clerk awaited this Court’s action on this Bill of Costs. This
Court’s Guidelines for Bills of Costs recognize as taxable “only those costs specifically
mentioned in 28 U.S.C. §§ 1920, 1921, and 1923,” W.D.N.Y. Guidelines for Bills of Costs
(“Guidelines”) Part II.A.
35
The party seeking to recover costs bears the burden of adequately documenting
and itemizing the costs requested, Anello v. Anderson, 191 F. Supp. 3d 262, 285
(W.D.N.Y. 2016) (Skretny, J.); Baker v. Power Sec. Corp., 174 F.R.D. 292, 294-95
(W.D.N.Y. 1997) (Larimer, C.J.) (“The burden is therefore upon the party seeking costs
to provide adequate documentation of its costs, and a failure to do so may result in the
costs being reduced or denied.”) (id. at 2-3). A party is not entitled to recover costs when
its application fails to provide substantiation for the costs sought, see Mendez v. Radec
Corp., 907 F. Supp. 2d 353, 360 (W.D.N.Y. 2012) (Telesca, J.) (denying costs that were
“not adequately explained through Plaintiffs’ submission”); Douyon v. N.Y. Med. Health
Care, P.C., 49 F. Supp. 3d 328, 352 (E.D.N.Y. 2014) (“[W]ith this record, the Court has
no way of confirming that these costs . . . were incurred by counsel.”).
As for Plaintiff’s claimed costs, the filing fees of the Clerk and service fees are
recoverable, 28 U.S.C. § 1920(1); Guidelines, Part II.B.a. Also recoverable are the fees
for taxable printed and electronically recorded transcripts necessarily obtained for use in
the case, under 28 U.S.C. § 1920(2), Guidelines Part II.D.1.c. Included as necessarily
obtained transcripts are transcripts of deposition of a party to the case, id., Part II.D.(1)(c),
transcripts admitted into evidence or used at trial, id., Part II.D.1.e., and transcripts of
deposition of person who testifies at trial, id., Part II.D.1.d. For allowable costs, the
prevailing party needs to produce an invoice or bill stating the transcript prepared, the
number of pages, the per page rate charged, and the total cost, id., Part II.D.3.
Copying of any materials where the copies are necessarily obtained for use in the
case also are recoverable, 28 U.S.C. § 1920(4); Guidelines Part II.H.1., and are taxed at
36
the lesser of actual costs and this Court’s published schedule of permitted rates,
Guidelines Part II.H.1.
The Guidelines also allow recovery of witness fees including mileage, subsistence,
and travel by witness, and statutory attendance fees, Guidelines, Part II.F.1.; see
28 U.S.C. § 1821(b) (attendance fee).
Non-taxable costs include secretarial services including copying charges, and
office overhead, Guidelines, Part III. Non-Taxable Costs 3., 11.
Costs incurred in
teleconferencing a deposition also are excluded, id., Part II.D.2.c. Also excluded are
costs related to preparing exhibit binders, absent prior Court approval, prior agreement
of the parties, or a showing of necessity, id., Part II.H.2.c. All other requested costs are
denied if not mentioned in 28 U.S.C. §§ 1920, 1921, or 1923, Guidelines, Part II.A.
B. Undisputed Costs
The parties do not dispute Plaintiff recovering for payment of Clerk’s fees ($350.00,
Docket No. 245, Pl. Response at 7; see Docket No. 242, Gov’t Atty. Decl. ¶ 30),
Guidelines Part II.B.a., and costs for service of the Summons and subpoena ($70.00),
totaling $420.00. The Government also accepted certain claimed costs, as discussed in
specific categories below.
C. Transcript Costs
1. Original Transcription Costs
Taking each remaining contested cost in turn, Plaintiff initially claimed incurring
$10,248.93 in transcription costs (Docket No. 226, Ex. A). The Government first identified
the problems and omissions in Plaintiff’s initial claim to recoup her transcription fees
(Docket No. 228, Gov’t Memo. at 3-9).
The Government noted errors in the chart
37
summarizing transcription costs, among other errors (Docket No. 228, Gov’t Memo. at 6,
7). The Government argued that Plaintiff did not obtain this Court’s prior approval for the
more expensive, expedited transcript (id. at 8; see Docket No. 241, Gov’t Sur-Reply
Memo. at 2-3).
In her reply and as amended in her Bill of Costs, Plaintiff now seeks a total of
$9,143.90 for transcription costs (Docket No. 235, Pl. Atty. Reply Decl. ¶ 21, Ex. A, Am.
Bill of Costs). She notes the typographical error in a summary chart in support of the Bill
indicating the incorrect date of Dr. Gillespie’s transcribed deposition (Docket No. 235, Pl.
Atty. Reply Decl. ¶ 11). She also submitted revised summaries of the amounts claimed
by court reporters (id. ¶ 15). Plaintiff contends that the invoices she submitted verifies
her paid expenses (id. ¶ 13). Plaintiff claims the maximum transcript rate of $3.65 per
page (id. ¶ 16) for ordinary transcripts. Plaintiff needed the transcript from the March 8,
2018, proceeding for the text of evidentiary rulings and daily transcripts of the testimony
of her expert, Dr. Muhs (id. ¶¶ 17, 18).
Plaintiff also renews her claim to recoup the costs for Dr. Khan’s transcript, which
was read into the trial on two occasions (Docket No. 235, Pl. Atty. Reply Decl. ¶¶ 6-8).
She claims that the deposition transcripts from Drs. Lall, Dosluoglu, and Gillespie were
necessarily obtained for use in the case pursuant to Part II.D.1. of this Court’s Guidelines,
these transcripts were from a party in this case, and were used at trial for impeachment
(id. ¶¶ 10, 11).
Finally, she claims the fee for contemporaneous transmission from a remote
location under Federal Rule of Civil Procedure 43, for $270.00 (id. ¶ 20).
38
In its Sur-Reply, the Government objects to the rates charged for some of the
transcripts (Docket No. 242, Gov’t Atty. Decl. ¶ 17), and charging the costs for transcribing
the March 2018 oral Decision and Order (id. ¶ 12).
First, by not challenging certain transcription charges, the Government accepts the
total of transcription charges of $3,113.90 for deposition and trial testimony, admitted into
evidence, see Guidelines Part II.D.1.d., e. Thus, this Court accepts Plaintiff’s claim for
this uncontested amount.
Second, for recovery of 2012 deposition transcription of Drs. Kahn, Dosluoglu, and
Lall, the Government raises no objection to the rate charged by court reporter Jack W.
Hunt; as amended, Plaintiff claims $3.65 per page for transcription. These three doctors
were involved in Mr. Southard’s surgery and subsequent care. Their testimony was
necessarily obtained for this case, 28 U.S.C. § 1920(2); W.D.N.Y. Guidelines for Bills of
Costs Part II.D.1. Plaintiff’s claimed cost here, totaling $3,066.00, is thus accepted.
Third, the Government objects to daily transcription (and its costs) for the trial
testimony of Plaintiff’s expert, Dr. Muhs of October 11, 2018. Dr. Muhs testified on
October 11, 2018, and Plaintiff then rested (Docket Nos. 169 (transcript), 166 (minutes);
Docket No. 242, Gov’t Atty. Decl. ¶¶ 14-17). Plaintiff did not seek prior approval for daily
transcription.
After Dr. Muhs’ testimony, the trial resumed about a month later, on
November 14, 2018, with the Government calling its expert witness, Dr. Gillespie, and
then resting its case (Docket Nos. 178 (minutes), 182 (transcript)). Thus, there was no
need for daily transcription.
39
Under the Guidelines for Bills of Costs, the cost of daily or expedited copy of
transcripts procured solely for the convenience of counsel and absent prior approval of
this Court are not taxable, Guidelines Part II.D.2.a.
This differs case from Bartels, cited by Plaintiff (Docket No. 245, Pl. Response
¶¶ 9-10), where defendants sought transcription of the first five days of testimony of the
principal parties on both sides during a three-week trial, 2012 WL 181633, at *3. The
court then had witnesses refer to that prior testimony and that testimony subsequently
came into evidence, id. at *4.
In the case at bar, a quick review of the timeline for the trial shows there were few
stretches of continuous trial days that might have warranted daily transcription (despite
Plaintiff not seeking it in advance). While Dr. Muhs’ testimony was referenced in crossexamination of Dr. Gillespie’s testimony (see Docket No. 182, Trial Testimony of Nov. 14,
2018, Tr. at 27, Dr. Gillespie stating that he reviewed Dr. Muhs’ trial testimony),
Dr. Gillespie testified about four weeks later, sufficient time for normal production of
transcription.
Plaintiff’s request for the higher expedited transcription rate is denied. Instead of
the $6.05 per page expedited rate charged, Plaintiff recovers the regular transcription rate
of $3.65 per page, or $627.80 as urged by the Government (Docket No. 242, Gov’t Atty.
Decl. ¶ 17). This Court agrees with the Eastern District of New York in Bartels, supra,
2012 WL 181633, at *2, that daily transcription of trial testimony is not customary and
“notes that the determination of ‘necessarily obtained’ transcripts is a [case-by-case], factsensitive inquiry.”
40
Fourth, the Government also objects to the rates charged for the reading of
Dr. Khan’s deposition testimony during the trial on May 30 and June 5, 2018. The parties
differ on the number of transcribed pages (Plaintiff claiming 345 pages, the Government
a total of 297 pages, compare Docket No. 235, Exs. I, L with Docket No. 242, Gov’t Atty.
Decl. ¶ 17).
The Government’s pagination is reflected in Jack W. Hunt’s invoices
submitted by Plaintiff (Docket No. 235, Ex. I, at 19-20), adding together the first volume
of 182 pages and the second volume of 115 pages to total 297 pages (Docker No. 242,
Gov’t Atty. Decl. ¶ 17; citing Docket No. 235, Pl. Ex. I, at 19-20).
Dr. Khan’s deposition testimony was read into the trial record on May 30 and
June 5, 2018. One possible explanation for the pagination discrepancy is that Plaintiff is
citing to the original number of pages in Dr. Khan’s deposition testimony (cf. Docket
No. 235, Pl. Ex. 1, at 2, invoice for July 17, 2012, deposition of Dr. Khan, 345 pages) and
not the number of pages from the court reporter’s re-recording of it during the trial. This
Court therefore adopts the number of pages and the cost total the Government urges, or
297 pages at $3.65 per page totaling $1,084.05. Plaintiff, however, still recovers for the
transcription of the 345 pages of deposition in 2012.
2. Dr. Nader’s Transcript
Fifth, in Sur-Reply, the Government also objects to the addition of transcript costs
for the July 18, 2012, deposition of Dr. Nader Djalal Nader, of $193.45, whose testimony
was not used in the trial (Docket No. 242, Gov’t Atty. Decl. ¶¶ 10-11). Plaintiff argued
that Dr. Nader was added to the table of witnesses because she participated in, hence
was a witness to, Howard Southard’s April 1, 2009, surgery (Docket No. 235, Pl. Atty.
Decl. ¶ 15, Ex. L, correcting Docket No. 226, Pl. Atty. Decl., Ex. A). Dr. Nader was the
41
anesthesiologist for Mr. Southard’s surgery as they placed the central line in Mr. Southard
after the failed EVAR operation and was Operation Room Manager (Docket No. 245, Pl.
Response ¶¶ 4, 5, Ex. B, Dr. Nader EBT Tr., Ex. C, Dr. Dosluoglu EBT Tr. at 56). In her
further Response, Plaintiff contends that, despite not introducing Dr. Nader’s testimony
at trial, Plaintiff deems Dr. Nader to be an officer of the VAMC, hence her deposition was
necessary for the case and the costs should be recouped (id. ¶¶ 4-8, Ex. A).
Plaintiff, however, never introduced Dr. Nader’s deposition testimony into the case
although that transcript was listed as a joint trial exhibit (Docket No. 193, Third Amended
Joint Trial Exhibit List, Exhibit 3). That testimony was not used in cross-examination.
Plaintiff never referred to Dr. Nader in the proposed finding of fact (Docket No. 205) or in
responding to the Government’s proposed findings of fact (Docket No. 219). While
Dr. Nader worked for the VAMC and served as Operation Room Manager, she was not
identified as a representative of Defendant to be considered a party to this case to have
coverage for transcription costs. The testimony of the anesthesiologist for Mr. Southard’s
surgery or the Operation Room Manager is not necessary. Plaintiff fails to show that
Dr. Nader’s testimony was used during the trial to justify taxation of this transcription
costs.
Plaintiff’s cases (Docket No. 245, Pl. Atty. Sur-Reply ¶¶ 6-7) for including the
deposition transcript cost are distinguishable. Both cases are from other districts and are
not based on this Court’s “Guidelines for Bills for Costs.” In Fields v. General Motors,
supra, 171 F.R.D. at 235-36 (id. ¶ 6), the Northern District of Illinois held that defendant’s
deposition of plaintiff’s accountants, officers and/or shareholders were necessary for use
in the case and the evidence was calculated to elicit admissible evidence despite not
42
using it for a successful motion for summary judgment. Citing Seventh Circuit precedent,
the court held that deposition transcripts that were not used in a motion for summary
judgment remain reasonably necessary, id. at 235, quoting Barber v. Ruth, 7 F.3d 636,
645 (7th Cir. 1993). Since these depositions were to elicit evidence in an admissible form,
the court accepted that they were “‘necessarily obtained for use in the case,’” Fields,
supra, 171 F.R.D. at 236, quoting 28 U.S.C. § 1920(2). Plaintiff here has not established
that Dr. Nader’s testimony is necessary for prosecution of this case.
The Eastern District of New York in Bauta (id. ¶ 7) awarded in part plaintiffs’ claim
for deposition transcription costs, 2019 WL 8060181, at *4-5. Under the Eastern District
of New York Local Rule 54.1, “unless otherwise ordered by the court, the original
transcript of a deposition, plus one copy, is taxable if the deposition was used or received
in evidence at the trial, whether or not it was read in its entirety,” see Bauta, supra,
2019 WL 8060181, at *4 (E.D.N.Y. June 17, 2019) (Reyes, Mag. J.); E.D.N.Y. Local Rule
54.1(c)(2). Costs for depositions “taken solely for discovery are not taxable,” E.D.N.Y.
Loc. R. 54.1(c)(2). “Use” under this rule was not limited to deposition testimony admitted
at trial but it also included “the costs of deposition transcripts not used at the trial where
they ‘appear to have been reasonably necessary to the litigation at the time they were
taken,’” id. at *4 (quoting Palm Bay Int’l, Inc. v. Marchesi DiBando S.P.A., 285 F.R.D. 225,
238 (E.D.N.Y. 2012)).
The court parsed that plaintiffs’ Bill of Costs for deposition
transcripts, granting only the costs for the original and one copy of depositions for
witnesses relevant to prevailing claims, id. at *4-5.
Both this Court’s Guidelines and the Eastern District of New York Rule 54.1 focus
on whether the transcript used or reasonably necessary for the case, specifically at trial.
43
Transcription of depositions for discovery purposes are not taxable under either court’s
rules, E.D.N.Y. Loc. Civ. R. 54.1(c)(2); see generally W.D.N.Y. Guidelines Part II.D.1.
(listing taxable transcript fees). The Government had not identified Dr. Nader as a
designated representative under Federal Rule 30(b)(6) to deem her a “party” to allow her
transcript to be taxed, despite Dr. Nader being Operation Room Manager. Plaintiff failed
to specify the role of the Operation Room Manager to have her deemed a representative
of VAMC (see also Docket No. 150, Dr. LeVaughn Tr., Mar. 8, 2018, at 4 (Plaintiff failed
to establish Dr. Lall was a managing agent of the hospital to admit his deposition
testimony under Fed. R. Civ. P. 32(a)(3); Docket No. 235, Pl. Ex. G, Tr. at 3 (rough draft;
same)). As she failed to establish the chief of vascular surgery was a “managing agent”
for Rule 32(a)(3) (id.), Plaintiff has not established that the Operation Room Manager is
the “managing agent” for the VAMC. Recovery for the costs of the transcription of Dr.
Nader is denied.
3. Costs of Evidentiary Ruling Transcript
Sixth, the Government also objects to taxing the costs for transcribing this Court’s
March 8, 2018, evidentiary ruling (at $18.30) (Docket No. 242, Gov’t Atty. Decl. ¶ 12; see
Docket No. 139, minutes Mar. 8, 2018, proceedings; see also Docket No. 150,
Dr. LeVaughn Tr. at 1-7) because it was not procured either by Order or upon the
stipulation of the parties (Docket No. 228, Gov’t Memo. at 8). This cost is allowed (nunc
pro tunc) because the oral ruling set the procedures for conduct of the trial. Transcription
thereof assisted Plaintiff in her conduct of the trial (see Docket No. 235, Pl. Atty. Reply
Decl. ¶ 17), as well as potentially assisting the Government. This cost therefore is
allowed.
44
4. Esquire Deposition Solutions
Seventh and finally, the Government objects to $270.00 charged by Esquire
Deposition Solutions for long distance video trial testimony of Dr. Purandath Lall from
March 29, 2018 (Docket No. 28, Gov’t Memo. at 9; see Docket No. 157, Tr. Mar. 29, 2018,
at 5). Initially, the Government objected to lack of substantiation for the charge (Docket
No. 228, Gov’t Memo. at 9; see also Docket No. 241, Gov’t Reply Memo. at 4), then the
Government argues that the charge was improper because it was not for electronically
recorded transcript (Docket No. 242, Gov’t Atty. Decl. ¶ 19).
Plaintiff responds that the cost for “contemporaneous transmission from a remote
location” was cheaper than having Dr. Lall come to Buffalo to testify (Docket No. 235, Pl.
Atty. Reply Decl. ¶ 20).
On March 8, 2018 (part of the transcribed oral Decision and Order Plaintiff now
wants recovered as a cost), this Court ruled that Plaintiff could either admit Dr. Lall’s live
testimony or his deposition but not both (Docket No. 150, Dr. LeVaughn Tr. at 5). Prior
to that decision, this Court noted that generally a video conferencing “must be near the
witness, either at a compatible courthouse, and that make things a little bit easier and
less expensive, or through some other means. That would mean you have to make the
arrangements for that” (id. at 3). Plaintiff then decided to call Dr. Lall as a live witness,
but appearing remotely. There is no record of Plaintiff in arranging this testimony seeking
prior approval to recover her expenses in having Dr. Lall’s contemporaneous transmission
of his testimony.
On March 29, 2018, Dr. Lall testified by video conference (Docket Nos. 149
(minutes), 157 (transcript)). Dr. Lall, Plaintiff’s counsel, and counsel for the Government
45
appeared at the conference room of Esquire Deposition Solutions in West Palm Beach,
Florida (Docket No. 157, Tr. Mar. 29, 2018, at 4-5). From review of that transcript, the
$270.00 seems to be for rental of the conference room for Dr. Lall’s testimony. Esquire
Deposition Solutions did not record or transcribe the testimony or transmit the testimony.
Plaintiff did not seek prior approval
Federal Rule of Civil Procedure 43(a) requires witness testimony in open Court
(unless a federal statute, the Federal Rules of Evidence, the Federal Rules of Civil
Procedure or other rules provide otherwise) and for good cause in compelling
circumstances allow “testimony in open court by contemporaneous transmission from a
different location.” Plaintiff apparently used Rule 43(a) to have Dr. Lall testify remotely
with contemporaneous transmission from Florida.
This Court’s Guidelines are silent as to the taxability of the costs for remotely
obtaining a trial witness’ testimony.
If this was a deposition, the costs incurred in
teleconferencing the examination would not be recoverable as a cost, Guidelines, supra,
Part II.D.2.3. There is no equivalent provision for trial testimony obtained remotely and
contemporaneously transmitted. Some taxable costs or costs considered taxable may
be analogous to renting a conference room for a witness to appear in. As examples, the
Guidelines deem not taxable long-distance telephone charges for telephonic depositions
“or costs incurred in teleconferencing a deposition,” Guidelines, Part II.D.2.c., while the
court reporter’s fees for attendance and travel for a deposition are taxable, id., Part
II.D.1.h., as are trial testimony and transcripts procured at this Court’s direction, id., Part
II.D.1.d., a. A witness’ rental of a vehicle is not taxable, id., Part II.F.2.e., as are travel
and expenses of counsel, id., Part III., Non-Taxable Costs 1. The Guidelines preclude
46
recovery of office overhead, id., Part III., Non-Taxable Costs 10. Since rental of space to
remotely obtain trial testimony is not listed in 28 U.S.C. §§ 1920 (filing and related fees),
1921 (United States marshal’s fees), or 1923 (docket fees), that cost should not be
taxable costs, see Guidelines, supra, Part II.A.
Given the current situation where more proceedings are being conducted remotely
due to the COVID-19 pandemic (including remote appearances of counsel, parties, and
potentially witnesses), future prevailing parties may incur the cost for using remote
conference space other than their offices for court appearances. Congress (in amending
28 U.S.C. chapter 123 and bill of costs statutes) or this Court should re-examine its
Guidelines to determine if the remote site rental by a litigant for a witness is recoverable
as a cost.
This Court, however, need not decide now whether the current version of the
Guidelines for Bill of Costs includes recovery of costs for rental of remote access space
for trial testimony. There is no prior approval for Plaintiff to incur this expense. Plaintiff
here has not produced an invoice from Esquire Deposition Solutions to confirm that the
expense was incurred for use of the conference room. This Court rejects this charge
based upon her failure to substantiate it, see Anello, supra, 191 F. Supp. 3d at 285;
Mendez, supra, 907 F. Supp. 2d at 360.
5. Recoverable Transcription Costs
After this discussion, Plaintiff’s justified transcription costs for taxation total
$7,910.05; this Court arrived at this total by adding $3,113.90 in accepted transcription
costs, $3,066.00 for deposition transcripts, $627.80 for Dr. Muhs’ trial testimony at nonexpedited rates, $1,084.05 for Dr. Khan’s deposition testimony, and $18.30 for
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transcribing this Court’s oral ruling.
Plaintiff’s claims for Dr. Nader’s deposition
transcription and room rental from Esquire Deposition Solutions for Dr. Lall’s remote
appearance at the trial are denied.
D. Duplication Charges
As for Plaintiff’s duplication charges, Plaintiff claims she substantiated these
charges (Docket No. 235, Pl. Atty. Reply Decl. ¶ 22). Plaintiff argues she is entitled to
recover the costs of reproducing photographs used as trial exhibits and documents (id.
¶ 24).
She objects to reducing her per page rate to $.10 for counsel’s in-house
duplication, an amount suitable 20 years ago or for larger law firms or the Government
but not now appropriate for a small law firm (id. ¶¶ 26-31).
She disputes Chief
Judge Geraci’s finding in Schmeichel v. Installed Building Products, LLC, No. 16CV410,
2019 WL 1585270, at *1 (W.D.N.Y. Apr. 12, 2019), as setting the current appropriate
going rate for in-house duplication (id. ¶¶ 27-29).
1. In-House Duplication Costs
Plaintiff initially claimed a total of 12,672 pages duplicated in-house, claiming a
rate of $.20 per page (Docket No. 226, Ex. B) for $2,534.40. The Amended Bill of Costs
now claims only 2,777 pages copied, for a cost claim of $555.40, again at the $.20 per
page rate (Docket No. 235, Pl. Atty. Reply Ex. E).
In its renewed objection (Docket No. 242, Gov’t Atty. Decl. ¶¶ 23-24), the
Government argues that Plaintiff fails to show that $.10 per page is unreasonable (Docket
No. 241, Gov’t Sur-Reply Memo. at 4-5) and believes Plaintiff thus entitled recover only
$277.70 (Docket No. 242, Gov’t Atty. Decl. ¶ 24).
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Plaintiff responds that inflation since 1997 (when $.10 per page was first accepted
as the reasonable in-house duplication rate) justified counsel now charging double that
rate (Docket No. 245, Pl. Response ¶¶ 13-21).
Chief Judge Geraci in Schmeichel, supra, 2019 WL 1585270, applied in 2019 what
appeared to be the going rate of $.10 per copy for in-house photocopying, id. at *1.
Plaintiff here, however, has not presented evidence of the going rate being higher or that
counsel’s costs have increased to justify doubling the rate (see Docket No. 241, Gov’t
Sur-Reply Memo. at 4). Her attorney has not argued that lawyers in firms its size are
currently charging this much for internal duplication. Instead, she argues that $.10 per
page may have been reasonable 20 years ago but inflation, and the size of counsel’s
operation, somehow justifies doubling that rate to $.20 per page in 2018 (Docket No. 235,
Pl. Atty. Reply Decl. ¶ 31).
Since this is the going rate, and not merely the rate Plaintiff’s counsel would
charge, Plaintiff has the burden of establishing that the going rate has changed since
1997 to 2007 (cf. id. ¶¶ 28-30, citing cases from that period). Although Plaintiff argues
the Consumer Price Index and paralegal salaries obviously increased over the past
23 years since 1997 when the going rate was set, Plaintiff still has not met that burden.
While that inflation rate may justify increasing the duplication charge and accepting her
argument to distinguish her counsel from the Government or larger firms and their
capacities (cf. id. ¶ 27), Plaintiff had to show that the marketplace (here similar law firms
or attorneys in solo or small firm practices in Buffalo) charged more than this accepted
$.10 rate. Plaintiff, however, has not shown that the marketplace has moved away from
$.10 per page. Given Chief Judge Geraci’s decision in Schmeichel in 2019 still had $.10
49
per page as a reasonable rate for in-house copying and absent evidence of higher
amounts being charged in other law firms, this Court holds that the reasonable duplication
rate remains $.10 per page.
As a result, Plaintiff’s in-house duplication costs for
2,777 pages claimed in the Amended Bill (Docket No. 235, Ex. E) totals $277.70.
2. Other Duplication Charges Claimed
The Government objects to recovery for color copies absent explanation of their
necessity (Docket No. 242, Gov’t Atty. Decl. ¶¶ 26, 28). Alternatively, the Government
argues the color copy rate of $.79 per page is “patently unreasonable,” while another firm
charged merely $.25 per page for color copies (id. ¶ 27). Plaintiff has not defended the
higher rate. Thus, this Court accepts as reasonable $.25 per page for color copying.
Given the medical evidence depicted in the color copying, this Court also accepts as
necessary color copies rather than mere black and white duplicates. This Court also
accepts the 747 color pages Plaintiff generated for a total taxable cost of $186.75 (at $.25
per page).
The Government also object to recouping for the costs of binders, custom tabs,
and three-hole punching (totaling $224.10), since these are not properly taxable (id.
¶¶ 25, 28). Again, Plaintiff is silent as to justifying recovering for this expense. Under the
Guidelines for Bill of Costs, non-taxable costs include “costs related to preparing exhibits,
binders, absent court approval, prior agreement between the parties, or a showing of
necessity,” Guidelines, Part II.H.2.c. There was no prior stipulation by the parties or this
Court’s approval for taxing that expense and Plaintiff has not shown the necessity for
charging this expense.
Binding, tabs, and three-hole punching of documents were
necessary to comply with the Pretrial Order (Docket No. 87, Pretrial Order, Pretrial Order
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Attachment ¶ 4 (format for copies of exhibits for Chambers)) but the expenses of
furnishing these items is one usually borne by the producing party. Plaintiff’s request for
taxation of this as a cost is denied.
The Government, however, had not objected to charges Plaintiff paid to two
external copiers (D4, LLC, and the Copy Store). Therefore, this Court holds Plaintiff can
claim $609.18 for black and white copies made by D4, LLC, and the Copy Store.
The grand total of recoverable duplication and related costs thus is $1,073.63; from
the total of $277.70 for in-house duplication, $609.18 for external black and white copies
(by the Copy Store and D4, LLC), and $186.75 for allowed color copies.
E. Plaintiff’s Claimed Other Costs
The Government at first argued that Plaintiff’s experts’ travel costs lacked
substantiation (Docket No. 228, Gov’t Memo. at 12-14). The Government only agreed to
$102.00 in witness travel and other costs incurred by Plaintiff (id. at 14).
In reply, Plaintiff provides some substantiation for witnesses’ travel expenses
(Docket No. 235, Pl. Atty Reply Decl. ¶¶ 32-35, Ex. K). She contends that the airfares
paid were within the amounts deemed reasonable under the General Services
Administration’s guidelines for airfare rates (id. ¶ 33). She argues that lodging and the
per diem for a testifying expert is not limited to the date that expert testifies (id. ¶ 34, citing
Abt Sys., LLC v. Emerson Elec. Co., No. 4:11CV00374 AGF, 2016 WL 5470198, at *4
(E.D. Mo. Sept. 29, 2016); Palm Bay, supra, 285 F.R.D. at 237). Following review of
claimed expense, she did reduce Dr. LeVaughn’s travel expenses by $120.00 (id. ¶ 35).
The Government in its Sur-Reply seeks reductions in the expenses claimed for
Dr. Muhs’ travel, reducing it to an acceptable amount of $886.76 (Docket No. 242, Gov’t
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Atty. Decl. ¶ 29). The Government made no further comment on the expenses claimed
for Dr. LeVaughn as amended but concludes that reasonable costs in this category total
only $2,863.80 (id.).
Plaintiff did document Drs. Muhs and LeVaughn’s travel expenses totaling
$2,570.82 (Docket No. 235, Ex. K). Although the Government found a higher figure to be
reasonable, this Court finds that recoverable witness fees and travel expenses supported
in this record thus total $2,570.82.
F. Acceptable Costs
With the accepted charged costs noted above totaling $420.00 and the costs
deemed acceptable herein totaling $11,554.50, Plaintiff is entitled to recover $11,974.50
(or $2,669.23 less than what she claims in her Amended Bill of Costs of $14,643.73,
Docket No. 235, Ex. A). Below is a chart summarizing accepted costs.
CATEGORY
SUBCATEGORY
SUBCATEGORY
AMOUNTS
Undisputed Charges
$ 3,113.90
2012 depositions
$ 3,066.00
Dr. Muhs Oct. 11,
2018, trial transcript
cost adjusted
Dr.
Khan
read
deposition transcript
March.
2018
Oral
Order transcribed; cost
adjusted
Dr. Nader deposition
$
Transcription Costs
Duplication Costs
627.80
$ 1,084.05
$
18.30
$0
Esquire
Deposition $0
Solutions room rental
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TOTAL
AMOUNTS
$ 7,910.05
$ 1,073.63
CATEGORY
SUBCATEGORY
In House duplication
SUBCATEGORY
AMOUNTS
$ 277.70
External duplication
$
609.18
Color copies
$
186.75
Travel and Other
Costs
Accepted Costs
TOTAL
AMOUNTS
$ 2,570.82
$
Clerk’s Fees
$
350.00
Service Fees
$
420.00
70.00
TOTAL
ALLOWABLE
COSTS
$11,974.50
V.
Conclusion
As a result, Plaintiff’s Motion for a New Trial or Alter or Amend the Judgment
(Docket No. 224) is granted in part, denied in part, denying her motion for a new trial and
some of the relief sought in altering or amending the Judgment (Docket No. 221), while
altering the Judgment on different grounds. Howard Southard’s award for his pain and
suffering is now $3,540,000.00, the award for his consciousness of his impending death
remains $366,663.00, and the remaining damages previously awarded, Coolidge, supra,
2020 WL 3467423 (Docket No. 220), total $8,773.64, for a grand total of $3,915,436.64.
Plaintiff also is entitled to recover her costs totaling $11,974.50.
VI.
Orders
IT HEREBY IS ORDERED, that Plaintiff’s Motion for New Trial (Docket No. 224) is
denied but her Motion to Alter or Amend the Judgment (id.) is granted in part and the
Judgment amended as follows,
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FURTHER, Judgment shall be amended and entered for Plaintiff that she recovers
a total $3,915,436.64 from Defendant for decedent Howard Southard’s pain and suffering,
fear of impending death, death, and the loss of parental support by his distributee children
from Defendant United States,
FURTHER, Judgment shall be entered awarding to Plaintiff Costs totaling
$11,974.50;
FURTHER, that the Clerk of Court is directed to enter an Amended Judgment in
favor of Plaintiff, consistent with this Decision and Order and the previous Decision and
Order (Docket No. 220) as amended by this Decision and Order, pursuant to Rule 52(a)
and 58 of the Federal Rules of Civil Procedure including post-judgment interest from the
date of judgment is entered, see 28 U.S.C. § 2674.
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated:
March 31, 2021
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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