Panicacci v. West Ada School District No. 2

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 ROBERT and AMIE PANICACCI, as No. 1:21-cv-00329 WBS legal guardians and parent of 13 G.P., a minor, 14 Plaintiffs, MEMORANDUM AND ORDER RE: MOTION FOR NEW TRIAL AND 15 v. MOTIONS FOR ATTORNEY’S FEES AND COSTS 16 WEST ADA SCHOOL DISTRICT #2, 17 Defendant. 18 19 ----oo0oo---- 20 After defendant prevailed on all claims,1 21 plaintiffs have moved for a new trial under Federal Rule of 22 Civil Procedure 49 (Docket No. 210) and defendant has moved 23 for an award of attorney’s fees and costs (Docket Nos. 207, 24

25 1 Plaintiff’s claims under the Americans With Disabilities Act (“ADA”) and Rehabilitation Act were tried 26 to the jury, and plaintiff’s claim under the Individuals 27 with Disabilities Education Act (“IDEA”) was decided by the court. 28 1 214, 215).2 The court addresses each of these motions 2 below. 3 I. Motion for New Trial 4 Plaintiffs contend that a new trial is warranted 5 based on multiple grounds. Specifically, they argue that 6 the undersigned showed partiality towards defendant through 7 his comments and actions during trial, improperly 8 restricted plaintiffs’ cross-examination of defense expert 9 Andrea Cox, improperly precluded plaintiffs from 10 introducing the text of the IDEA, and improperly instructed 11 the jury on intentional discrimination under the ADA and 12 the Rehabilitation Act. 13 A. Evidentiary Rulings 14 1. Alleged Restriction of Cross Examination 15 Plaintiffs argue that the court should have 16 allowed them to publish to the jury the Behavior Analyst 17 Certification Board’s ethical code during their cross 18 examination of defense expert Andrea Cox and improperly 19 restricted their cross examination of Ms. Cox. Plaintiffs’ 20 counsel made it clear that he did not seek to admit the 21 ethical code as evidence. He nevertheless sought to 22 2 Defendant originally filed a combined motion for 23 attorney’s fees and costs at Docket No. 207. The court denied the request for costs without prejudice to filing a 24 separate bill of costs with supporting documentation. (Docket No. 212.) Defendant then filed a renewed motion 25 for costs and a separate renewed motion for attorney’s fees. Given the court’s denial of the motion for costs 26 without prejudice, and the ambiguity regarding whether 27 defendant should file a separate motion for attorney’s fees, the court does not find that any of these motions 28 were untimely, contrary to plaintiffs’ contention. 1 publish portions of it to the jury. The court’s failure to 2 permit him to do so was not error. It is not the court’s 3 practice to allow documents which are not in evidence to be 4 published to the jury, and counsel was made well aware of 5 that practice. 6 Moreover, although the court did not permit 7 plaintiffs’ counsel to display the ethical code which was 8 not in evidence to the jury, the court did permit him to 9 question Ms. Cox at length about the ethical code and the 10 proper oversight of staff using applied behavior analysis 11 principles and techniques. In the court’s view, nothing 12 more could have been accomplished by showing the text of 13 the code to the jury. 14 2. Failure to Admit the Text of the IDEA in the 15 Jury Phase of the Trial 16 Because plaintiffs’ IDEA claim was not before the 17 jury, and was to be decided by the court, under Rule 403 of 18 the Federal Rules of Evidence, the court determined that 19 admission of the text of the IDEA would unnecessarily 20 confuse the jury, particularly since plaintiffs’ attorney 21 had made it clear that he did not predicate his ADA claim 22 on any violation of the IDEA. Plaintiffs’ ADA claim was 23 based primarily on their contention that G.P.’s services 24 were not comparable to those he received in his prior 25 school district, and counsel was allowed extensive cross 26 examination and argument on that issue. 27 B. Jury Instructions 28 Although during trial plaintiffs withdrew their 1 objection to the court’s jury instructions, they now 2 complain of the court’s instruction regarding intentional 3 discrimination. Specifically, they argue that because the 4 court did not include the text of the IDEA in its 5 instructions, they were not able to fully present their 6 theory that the school district intentionally discriminated 7 against G.P. because it knew G.P.’s services were not 8 comparable to what he was receiving in California. 9 However, during the process of settling the jury 10 instructions, when the court offered to include an 11 explanation of what the IDEA says, counsel expressly 12 declined the offer and withdrew that suggestion.3 Counsel 13

14 3 When plaintiffs’ counsel suggested including an explanation of the provisions of the IDEA in the 15 instructions after they had already been agreed upon, the court offered to modify the pertinent instruction as 16 follows:

17 THE COURT: All right. Here's what we’ll do. Start all 18 over again. We’ll start over with the jury instructions. Now you’re asking for more jury 19 instructions. Because if there are statutes or regulations that either side wants to rely upon, it’s 20 the Court’s responsibility to instruct the jury what those statutes and regulations say. It’s not for the 21 witness to interpret or to explain statutes and 22 regulations. So what you need to do is propose jury instructions to me that explain what the statutes and 23 regulations say, and you can do that Monday morning. And we can forget about these instructions. We don’t 24 need them anymore.

25 MR. BERGMAN: No, no, Your Honor --

26 THE COURT: No, we’ll use these instructions, but we’ll 27 add an instruction where you have suggested to me what you want me to tell them about statutes and 28 regulations, if that’s your theory of the case. 1 got the jury instructions they asked for and cannot be 2 heard to complain about them now. 3 Plaintiffs have not shown that the court’s 4 instruction regarding intentional discrimination, to which 5

6 MR. BERGMAN: It’s not the big theory of the case. 7 THE COURT: No, it’s one of the theories of the case. 8

MR. BERGMAN: It’s one of the theories. 9

10 THE COURT: Okay. But you have to do it the right way.

11 Then, after considerable discussion, plaintiffs’ attorney withdrew his request to include an explanation of 12 the provisions of the IDEA as follows:

13 MR. BERGMAN: I was going to put this to rest. As 14 I’m thinking about this and thinking about Anne’s objection and thinking about your explanation, 15 I’m going to withdraw the suggestion. I don’t think -- and I think I have already told you that 16 I have no objection to the jury instructions. I am not going to back up this train again on you. 17 I apologize. 18 THE COURT: Don’t -- 19 MR. BERGMAN: Sorry, I don’t apologize. I will 20 never apologize again.

21 THE COURT: If you’re learning one thing, is how 22 to deal with me. You don’t have to make me happy. You don’t have to apologize if you’re critical of 23 something I do. You have to listen to something I say. If it makes sense, you follow it. If not, 24 dig your heels in and take your position.

25 MR. BERGMAN: After hearing what the Court is saying and Ms. Magnelli is saying, I think at the 26 end of the day I’m just going to throw out the 27 argument.

28 (Tr. at 125-26, 128-29 (Dkt. 196).) 1 counsel did not object, was erroneous or a misstatement of 2 the law. See Murphy v. City of Long Beach, 914 F.2d 183, 3 187 (9th Cir. 1990). 4 C. Judge’s Remarks During Trial 5 “A trial judge is more than an umpire, and may 6 participate in the examination of witnesses to clarify 7 evidence, confine counsel to evidentiary rulings, ensure 8 the orderly presentation of evidence, and prevent undue 9 repetition.” United States v. Scholl, 166 F.3d 964, 977 10 (9th Cir. 1999) (citation omitted). 11 The court bears no bias nor animosity towards any 12 of the parties or their attorneys in this action. Any 13 remarks by the court which counsel may have regarded as 14 critical of his performance were aimed at expediting the 15 the pace of the trial and minimizing unnecessary use of the 16 jury’s time. Where possible, the court took care to limit 17 its criticism to bench conferences outside the hearing of 18 the jury, and made it clear in its instructions to the jury 19 multiple times that that they should not take anything the 20 court may have said or done during the course of trial as 21 an indication of what it thought of the evidence or what 22 the verdict should be, and in its final jury instructions 23 reminded the jury that they should not read into anything 24 the court may have said or done as any suggestion as to 25 what verdict they should return. 26 D. Conclusion 27 For the reasons discussed above, a new trial is 28 not warranted based on any of the grounds asserted by 1 plaintiffs, either individually or collectively. 2 Accordingly, plaintiffs’ motion for new trial (Docket No. 3 210) is DENIED. 4 II. Motion for Attorney’s Fees 5 Defendant seeks attorney’s fees in the amount of 6 $168,905.50, arguing that this action was “frivolous, 7 unreasonable, and without foundation.” See Christiansburg 8 Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); 20 U.S.C. § 9 1415(i)(3)(B). While the jury found against plaintiffs on 10 the ADA and Rehabilitation Act claims, and the court found 11 against plaintiffs on the IDEA claim, the court does not 12 find that any of plaintiffs’ claims were frivolous, 13 unreasonable, or without foundation. Accordingly, 14 defendant’s motion for attorney’s fees (Docket No. 207, 15 214) is DENIED. 16 III. Motion for Costs 17 Rule 54(d)(1) of the Federal Rules of Civil 18 Procedure and District of Idaho Local Civil Rule 54.1 19 govern the taxation of costs, which are generally subject 20 to limits set under 28 U.S.C. § 1920. See 28 U.S.C. § 1920 21 (enumerating taxable costs); Fed. R. Civ. P. 54(d)(1) 22 (“Unless a federal statute, these rules, or a court order 23 provides otherwise, costs--other than attorney’s fees-- 24 should be allowed to the prevailing party.”); Crawford 25 Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440-45 26 (1987) (limiting taxable costs to those enumerated in § 27 1920). 28 The court exercises its discretion in determining 1 whether to allow certain costs. See Amarel v. Connell, 102 2 F.3d 1494, 1523 (9th Cir. 1996) (the district court has 3 discretion to determine what constitutes a taxable cost 4 within the meaning of § 1920). The losing party has the 5 burden of overcoming the presumption in favor of awarding 6 costs to the prevailing party. See Russian River Watershed 7 Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th 8 Cir. 1998) (noting that the presumption “may only be 9 overcome by pointing to some impropriety on the part of the 10 prevailing party”); Amarel, 102 F.3d at 1523; see also 11 Local Civil Rule 54.1(a)(2) (“The burden is on the opposing 12 party to establish that a claim is incorrectly stated, 13 unnecessary or unreasonable.”). 14 Defendant seeks costs in the amount of (1) $17.70 15 in clerk and service fees; (2) $7,886.60 for trial 16 transcripts; (3) $6,293.10 for deposition costs; (4) 17 $419.60 for copies of papers and exhibits; and (5) 18 $2,633.00 for expert trial video deposition fee, for a 19 total of $17,250.00. Defendant certifies that these costs 20 were actually and necessarily performed and has provided 21 the underlying documentation for these costs. 22 After reviewing the listed costs, and in light of 23 the fact that plaintiffs do not object to the costs for 24 clerk and service fees and copies of papers and exhibits, 25 the court will allow these costs, which are taxed against 26 plaintiffs. 27 Plaintiffs object, however, to the costs claimed 28 for trial transcripts and depositions, including the video 1 deposition of expert Yrenka Sunderlin, claiming, among 2 other things, that the claimed costs are excessive and 3 unnecessary. “Whether a transcript or deposition is 4 ‘necessary’ must be determined in light of the facts known 5 at the time the expense was incurred.” Sunstone Behav. 6 Health, Inc. v. Alameda Cnty. Med. Ctr., 646 F. Supp. 2d 7 1206, 1219 (E.D. Cal. 2009) (Shubb, J.) (citation omitted). 8 Given that Ms. Sunderlin was a key witness in 9 this case and it was not clear whether the court would 10 allow the playing of Ms. Sunderlin’s video deposition, the 11 costs of recording the deposition and obtaining a 12 transcript of the deposition were both reasonably incurred.4 13 Similarly, given that Dr. Brett Thomas was a key witness 14 for the plaintiffs, the costs of obtaining his deposition 15 transcript were also reasonably incurred. Finally, the 16 daily trial transcript fees were reasonably incurred 17 because, among other things, multiple witnesses were called 18 out of order and the parties had to prepare for the bench 19 trial on the IDEA claim after the ADA and Rehabilitation 20 Act claims were tried to the jury. While these costs are 21 significant, the court does not find that they are 22 excessive or that the amount warrants disallowance. Thus, 23

24 4 The applicable federal statute, 28 U.S.C. § 1920, states that the judge may tax costs for “electronically 25 recorded transcripts,” and several courts have found that costs for video depositions are permissible under this 26 statute. See Craftsmen Limousine, Inc. v. Ford Motor Co., 27 579 F.3d 894, 897-98 (9th Cir. 2009) (listing cases and holding that costs of video depositions are included under 28 28 U.S.C. § 1920). 1 the court will allow the claimed costs for trial 2 transcripts, deposition transcripts, and the expert video 3 deposition. 4 Accordingly, defendant’s motion for of costs 5 (Docket No. 215) is GRANTED. Costs of $17,250.00 will be 6 | allowed for defendant and are taxed against plaintiffs. 7 IT IS SO ORDERED. 8 Dated: August 7, 2025 oftte a ak beg! 9 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10