Deaton v. Dreis & Krump Manufacturing Co.

134 F.R.D. 219, 1991 U.S. Dist. LEXIS 1133, 1991 WL 10192
CourtDistrict Court, N.D. Ohio
DecidedJanuary 10, 1991
DocketCiv. A. No. 89CV1661
StatusPublished
Cited by5 cases

This text of 134 F.R.D. 219 (Deaton v. Dreis & Krump Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deaton v. Dreis & Krump Manufacturing Co., 134 F.R.D. 219, 1991 U.S. Dist. LEXIS 1133, 1991 WL 10192 (N.D. Ohio 1991).

Opinion

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

A jury returned a verdict in favor of the plaintiff, Darrin Deaton, in the amount of $185,000, in this product liability case. The jury assessed $100,000 for past damages, and $85,000 for future damages. Now pending are Deaton’s motions for costs and pre-judgment interest. In addition, the Court must adjust the judgment to reflect workers’ compensation benefits pursuant to O.R.C. § 2317.45.

The Court grants Deaton’s motion for costs, denies Deaton’s motion for prejudgment interest, and concludes that the adjustment to the verdict for Deaton’s workers’ compensation benefits is completely offset by the contributions of Deaton’s employer.

I. BILL OF COSTS

Deaton seeks $3607.40 in costs pursuant to Federal Rule of Procedure 54(d), as follows:

1. Videotaped deposition used at trial:
Dr. Daniel Cudnik, videotaping, copy of videotape, and copy of deposition transcript $474.30
Showing of videotape 191.00
TOTAL .............................. $ 665.30
2. Depositions read at trial during cross examination of defense witnesses:
Roy F. Gottschalk $764.70
Emmett McCarthy 775.05
John Jacob 250.80
TOTAL .............................. $1,790.55
[221]*2213. Copies of deposition transcripts purchased for trial preparation and read during direct examination:
Gerald Rennell $ 98.50
Darrin Deaton 233.20
TOTAL .............................. $ 331.70
4. Copies of plaintiff’s exhibits and treatises as required by Court to be bound in two sets for Court and one for defense counsel: $ 219.85
5. Large drawing of press brake machine used throughout trial by plaintiff and defendant as demonstrative evidence: $ 600.00
TOTAL OF ALL EXPENSES......... $3,607.40

Dreis & Krump contests each of these requests.

In assessing costs under Rule 54(d), this Court is limited by 28 U.S.C. § 1920 which enumerates expenses that may be taxed. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385 (1987); Sales v. Marshall, 873 F.2d 115, 119 (6th Cir.1989). Section 1920 provides as follows:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation for court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1928 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

Rule 54(d) creates a presumption in favor of awarding costs, but the district court may, in its discretion, deny them. White & White, Inc. v. American Hospital Supply Co., 786 F.2d 728, 730 (6th Cir.1986).

A.

Deaton first requests $665.30 for the videotaped testimony of Dr. Daniel Cudnik. Deaton notes that Dr. Cudnik’s deposition was videotaped pursuant to Rule 32(a)(3)(E). See also Local Rule 14.01. Deaton states that Dreis & Krump was notified of his intent to proceed in that manner, in order to preserve Dr. Cudnik’s testimony for trial, and that Dreis & Krump voiced no objection.1 Dreis & Krump, however, views the videotape as an expense incurred to secure the testimony of a witness, and therefore concludes that Deaton’s costs should be limited to the $30 statutory maximum for witness fees.

There is authority for both positions. In Fressell v. A.T. & T. Technologies, 103 F.R.D. 111, 116 (N.D.Ga.1984), for example, the court rejected a nearly identical claim, as follows:

The defendant [who was the prevailing party] presented a $600 charge for its [222]*222videotaping of a deposition of a witness who would not be available at trial. The defendant contends that the taping took place upon the agreement of counsel. However, a better characterization might be that plaintiffs’ counsel consented to the decision of defendant’s counsel to preserve the testimony of a witness in a more effective, although more expensive, manner. The court finds that the cost of the videotape fits more appropriately under subsection (3) as a variant of a witness fee, and the fee recovered for this videotaped testimony will be limited, as are other witness fees, by 28 U.S.C. § 1921, to $30.00 per diem.

On the other hand, the court in Mastrapas v. New York Life Insurance Co., 93 F.R.D. 401, 406-07 (E.D.Mich.1982), awarded the cost of videotaping the depositions of two physicians where the videotapes were presented at trial. The court concluded that the depositions were reasonably necessary to the presentation of the defendant’s case, since the physical condition of the plaintiff was a material issue in dispute, and awarded $790 as deposition-related expenses. Id. Accord Desisto College v. Town of Howey-in-the-Hills, 718 F.Supp. 906, 914 (M.D.Fla.1989), aff'd, 914 F.2d 267 (11th Cir.1990); Sack v. Carnegie Mellon University, 106 F.R.D. 561, 564 (W.D.Pa.1985); cf. Newman v. Grand Trunk Western Railroad Co., 781 F.2d 55, 56 (6th Cir.1985) (district court did not abuse its discretion in denying costs for videotaped deposition “which was of limited probative value to the jury in view of the other evidence in the case”); Roberts v. Homelite Division of Textron, Inc., 117 F.R.D. 637, 640 (N.D.Ind.1987) (costs disallowed when prevailing party had previously agreed to bear expense when seeking leave for videotaped deposition).

This Court concludes that the better view is to consider the videotape as a deposition-related expense, rather than as a variant of a witness expense. Accordingly, Deaton should be awarded his full costs for the videotaping and showing of Dr.

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Bluebook (online)
134 F.R.D. 219, 1991 U.S. Dist. LEXIS 1133, 1991 WL 10192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deaton-v-dreis-krump-manufacturing-co-ohnd-1991.