Morrison v. Reichhold Chemicals, Inc.

United States Court of Appeals,
Eleventh Circuit.
No. 94-9175.
Roger Dale MORRISON, Sr., and Linda S. Morrison, Plaintiffs-
Appellants,
v.
REICHHOLD CHEMICALS, INC., Defendant, Third-Party Plaintiff,
Appellee,
Goodyear Tire and Rubber Company and Industrial Rubber and Safety
Products, Incorporated, Third-Party Defendants.
Oct. 10, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:91-cv-229-RLA), Robert L. Vining, Jr.,
District Judge.
Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD,
Senior Circuit Judge.
PER CURIAM:
Among various challenged trial errors and costs rulings by the
district court, this appeal presents the first-impression issue for
our circuit of whether video depositions are taxable as costs under
28 U.S.C. § 1920(2) and Federal Rule of Civil Procedure 30(b)(2)
and (3) without such a stipulation by the parties. We affirm all
rulings by the district court with the exception of the taxation of
costs for expert witness fees, which we reverse, and video
depositions, which we reverse in part and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
Plaintiffs-appellants, Roger Dale Morrison, Sr. and Linda S.
Morrison ("the Morrisons"), brought this action for negligence
against defendant-appellee, Reichhold Chemicals, Inc. ("Reichhold")
and sought damages for injuries that Linda Morrison allegedly
suffered as a result of exposure to fumes resulting from a chemical
explosion and fire at the Reichhold Chemical plant in Walker
County, Georgia on July 14, 1991, and for Roger Morrison's loss of
consortium. For the purpose of the trial, Reichhold stipulated
that it would concede negligence if the jury found that Linda
Morrison had been injured and that her injury was a result of
exposure to chemicals from the Reichhold fire. Following a
nine-day trial, the jury rendered a verdict for Reichhold and found
in a special interrogatory that Linda Morrison had not been exposed
to any product of Reichhold.
The Morrisons filed a motion for a judgment notwithstanding
the verdict and, alternatively, for a new trial. Reichhold filed
a motion for taxation of costs against the Morrisons. The district
court entered an order that denied the Morrisons' motion and taxed
costs in the amount of $8,282.10 in favor of Reichhold. The
Morrisons claim that the district court committed four errors in
the course of the trial that require a reversal by this court: (1)
that the district court erred in refusing to allow their toxicology
expert, Jesse Bidanset, to testify; (2) that the district court
abused its discretion and created confusion for the jury in
admitting Linda Morrison's complete set of medical records into
evidence; (3) that the district court erred in its instruction
regarding preponderance of the evidence; and (4) that the trial
court erred in failing to modify its instruction on the admission
of negligence by Reichhold and the use of circumstantial evidence
to prove exposure. We find no merit to the Morrisons' challenge of
the court's evidentiary rulings and charge to the jury, and we
affirm without discussion the court's denial of their motion for a
judgment notwithstanding the verdict or for a new trial.
II. ANALYSIS
The Morrisons appeal the district court's grant of
Reichhold's post-trial motion for the taxation of costs. The
Morrisons specifically object to the trial court's award of
$2,208.20 to Reichhold in expert witness fees and $1,168.80 to
Reichhold for the videotaping of several depositions. 1 We review
a district court's decision to tax costs for clear abuse of
discretion. Tanker Management, Inc. v. Brunson, 918 F.2d 1524,
1527 (11th Cir.1990).
A. Expert Witness Fees
With regard to expert witness fees, Reichhold sought
reimbursement for the fees charged by the Morrisons' experts, Dr.
David Bosshardt, Dr. Yune-Gill Jeong, and Mr. Neal Pascal, to
appear at video depositions noticed by the Morrisons and attended
1
In the district court, the Morrisons raised additional
objections to Reichhold's motion to tax costs. The Morrisons
originally objected to Reichhold's motion as procedurally
defective because it was not verified with an affidavit as
required by 28 U.S.C. § 1924. Reichhold conceded to the district
court that its original motion was not in compliance with § 1924
but argued that it was entitled to supplement its motion after
the filing deadline in order to comply with the verification
requirement. The district court allowed Reichhold to supplement
the verification and considered the merits of the bill of costs.
The Morrisons also objected to various other depositions and
copying costs as excessive, and the district court, upon review
of the depositions, allowed the costs sought by Reichhold.
Because the Morrisons do not raise either of these issues on
appeal, we do not address the merits here.
by counsel for Reichhold. 2 The expert fees charged to Reichhold
for depositions were: Dr. Bosshardt, $225.00; Dr. Jeong, $833.20;
and Mr. Pascal, $1,150.00.
Rule 54(d)(1) of the Federal Rules of Civil Procedure
provides that "costs ... shall be allowed as of course to the
prevailing party unless the court otherwise directs." Fed.R.Civ.P.
54(d)(1). A witness who appears before a federal court "or before
any person authorized to take his deposition pursuant to any rule
or order of a court of the United States" is entitled to fees and
allowances, including "an attendance fee of $40 per day for each
day's attendance." 28 U.S.C. § 1821(a)(1) & (b) (West 1996).
Section 1920 of title 28 provides that "[a] judge or clerk of any
court of the United States may tax as costs ... [f]ees and
disbursements for printing and witnesses." 28 U.S.C. § 1920(3)
(West 1996). "The logical conclusion from the language and
interrelation of these provisions is that § 1821 specifies the
amount of the fee that must be tendered to a witness, § 1920
provides that a fee may be taxed as a cost, and Rule 54(d) provides
that the cost shall be taxed against the losing party unless the
court otherwise directs." Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385(1987).
In Crawford, the Supreme Court held that, "when a prevailing
party seeks reimbursement for fees paid to its own expert
witnesses, a federal court is bound by the limit of § 1821(b),
2
Although Dr. Bosshardt and Dr. Jeong were listed as experts
by the Morrisons, they also were treating physicians of Linda
Morrison. Mr. Pascal was plaintiff's expert in meteorology.
absent contract or explicit statutory authority to the contrary."
Id. at 439, 107 S.Ct. at 2496. The district court attempted to
distinguish the holding in Crawford from this case by noting that
in Crawford,
the Court did not decide whether a losing party could be
required to pay the fee charged by his expert witnesses when
they were deposed by the winning party. Although this court
recognizes that there is language in Crawford Fitting which
indicates that no fee other than the $40 witness fee permitted
by 28 U.S.C. § 1821 would be allowable, this court also
believes that such an interpretation would be contrary to fair
play and common sense.
Technically, an expert identified by one party and
deposed by the other party is entitled to [a] fee of only $40
per day. However, that is not how the modern, real world
operates. It is a common practice for an expert to charge
considerably more than $40 per day for his testimony....
Recognizing that a party is virtually held hostage to the fee
charged by the opposing party's experts, this court holds that
the winning party is entitled to reimbursement for the fees
charged by the losing party's expert witnesses.
R14-130-6-7. Although we appreciate the district court's
frustration with the disparity between economic reality and
statutory imperative, we cannot ignore the Supreme Court's direct
statements to the contrary:
We think that it is clear that in §§ 1920 and 1821, Congress
comprehensively addressed the taxation of fees for litigants'
witnesses. This conclusion is all the more compelling when we
consider that § 1920(6) allows the taxation, as a cost, of the
compensation of court-appointed expert witnesses. There is no
provision that sets a limit on the compensation for
court-appointed expert witnesses in the way that § 1821(b)
sets a limit for litigants' witnesses. It is therefore clear
that when Congress meant to set a limit on fees, it knew how
to do so. We think that the inescapable effect of these
sections in combination is that a federal court may tax expert
witness fees in excess of the $[40]-per-day limit set out in
§ 1821(b) only when the witness is court-appointed. The
discretion granted by Rule 54(d) is not a power to evade this
specific congressional command. Rather, it is solely a power
to decline to tax, as costs, the items enumerated in § 1920.
Crawford, 482 U.S. at 442, 107 S.Ct. at 2497-98 (emphasis added).
Therefore, we find that the district court erred in taxing as costs
any amount for expert witness fees in excess of the $40 per day
allowed under § 1821, and, upon remand, the district court should
reduce the taxable costs accordingly.
B. Videography
The Morrisons object to the district court's taxation of the
cost of the video depositions of their experts, Dr. Jeong, Dr.
Bosshardt, and Dr. Garretson, and the registered nurse, Billie
Precise, who treated Linda Morrison in the emergency room on the
night of the Reichhold fire. The Morrisons noticed the depositions
of Dr. Jeong, Dr. Bosshardt, and Dr. Garretson. The video
deposition of Billie Precise, however, was taken by Reichhold,
which seeks reimbursement of the costs of obtaining copies of the
video tapes of these depositions as well as $1,090.42 for the cost
of the videographer, who displayed the videos at the trial. The
Morrisons argue that these costs were incurred for the convenience
of the parties and are not items that are taxable as costs against
the losing party.
During the discovery period, the parties filed a stipulation
3
that, pursuant to Federal Rule of Civil Procedure 29, the
depositions of any and all treating physicians could be videotaped
for use in evidence at trial. The parties also stipulated that,
"[i]n the event any other depositions are taken for evidence in
3
Federal Rule of Civil Procedure 29 provides in relevant
part that, "[u]nless otherwise directed by the court, the parties
may by written stipulation (1) provide that depositions may be
taken before any person, at any time or place, upon any notice,
and in any manner and when so taken may be used like other
depositions...." Fed.R.Civ.P. 29(1).
this case, by Plaintiffs, provisions of this Stipulation shall
apply, and such deposition may be video-taped in accordance with
the terms and provisions hereof." R11-94-1. Finally, the parties
stipulated that "[a]ll of the costs of the video-taping shall be
borne by Plaintiffs, and shall not be taxed as costs against
Defendant," and that Reichhold could copy the videotapes at its own
expense. Id. at 3. However, the parties neither stipulated that
the cost of any copies made by Reichhold would not be taxable as
costs, nor that the cost of any videotaping conducted by Reichhold
would not be taxed to the Morrisons. Therefore, we must address
the issue of whether, absent a stipulation to the contrary, video
depositions are taxable as costs under the United States Code and
Federal Rules of Civil Procedure.
The Morrisons claim that § 1920 excludes video depositions as
a taxable cost because it mentions only stenographic depositions.
The district court rejected this argument and stated that,
even though 28 U.S.C. § 1920 speaks only of "stenographic"
transcription costs, the court believes that the costs of
video depositions are encompassed by that code section. Video
depositions were virtually unknown at the time that section
1920 was adopted, and this court does not believe that a party
should be penalized because he has chosen to preserve and
present testimony through video as opposed to a printed
transcript. Consequently, the court will allow these costs.
R14-130-6. We conclude that the most logical resolution of this
issue is to interpret § 1920(2) in conjunction with Federal Rule of
Civil Procedure 30(b)(2) and (3). Section 1920(2) permits the
taxing of costs for "[f]ees of the court reporter for all or any
part of the stenographic transcript necessarily obtained for use in
the case." 28 U.S.C. § 1920(2) (West 1996). Under Federal Rule of
Civil Procedure 30(b)(2) and (3):
(2) The party taking the deposition shall state in the
notice the method by which the testimony shall be recorded.
Unless the court orders otherwise, it may be recorded by
sound, sound-and-visual, or stenographic means, and the party
taking the deposition shall bear the cost of the recording.
Any party may arrange for a transcription to be made from the
recording of a deposition taken by nonstenographic means.
(3) With prior notice to the deponent and other parties,
any party may designate another method to record the
deponent's testimony in addition to the method specified by
the person taking the deposition. The additional record or
transcript shall be made at that party's expense unless the
court otherwise orders.
Fed.R.Civ.P. 30(b)(2) and (3) (West 1996).4 Reading these two
provisions together, we hold that, when a party notices a
deposition to be recorded by nonstenographic means, or by both
stenographic and nonstenographic means, and no objection is raised
4
Prior to the 1993 amendments, Federal Rule of Civil
Procedure 30(b)(4) provided that the parties could stipulate that
the testimony at a deposition be recorded by other than
stenographic means but that "[a] party may arrange to have a
stenographic transcription made at the party's own expense."
(emphasis added). One federal court summarized the changes to
the rules as follows:
Rule 30(b)(2) is the current provision authorizing the
taking of depositions by other than stenographic means,
and it states that "[a]ny party may arrange for a
transcription to be made from the recording of a
deposition taken by nonstenographic means."
Conspicuously absent is the phrase "at the party's own
expense." The court notes that the revised rules
contain an express requirement that a party who has
noticed a deposition to be taken by other than
stenographic means must provide a transcript to
opposing parties as part of its discovery obligations.
Fed.R.Civ.P. 26(a)(3)(B). That party must also provide
a transcript if the video deposition is to be offered
as evidence at trial or upon a dispositive motion.
Fed.R.Civ.P. 32(c). Thus, under the revised rules, it
is clear that a transcript of a videotape deposition is
not for the "convenience of counsel," but rather is an
express obligation.
Garonzik v. Whitman Diner, 910 F.Supp. 167, 171-72
(D.N.J.1995) (alteration in original).
at that time by the other party to the method of recordation
pursuant to Federal Rule of Civil Procedure 26(c),5 it is
appropriate under § 1920 to award the cost of conducting the
deposition in the manner noticed.
We recognize that, although our insistence on strict adherence
to the language of §§ 1821 and 1920(3) with regard to the taxation
of expert witness fees may seem to contradict our less literal
interpretation of the phrase "stenographic" in § 1920(2), we have
attempted to remain consistent in our method of statutory
interpretation. In the case of expert witness fees, the Supreme
Court has offered a clear interpretation of the statute that
controls our decision. The Supreme Court has yet to address the
topic of videotaped depositions. When viewed in light of the
Federal Rules of Civil Procedure, which allow depositions to be
recorded in any number of ways, the most logical conclusion is that
"a videotaped deposition is more appropriately taxed as is any
5
Federal Rule of Civil Procedure 26(c) provides in relevant
part:
Upon motion by a party or by the person from whom
discovery is sought, ... the court in the district
where the deposition is to be taken may make any order
which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the
following:
....
(3) that the discovery may be had only by a method
of discovery other than that selected by the party
seeking discovery....
Fed.R.Civ.P. 26(c)(3). The district court's decision to
grant or deny a Rule 26(c) objection becomes the final
determination of the method of recordation of the deposition
that is taxable.
other deposition expense." Jamison v. Cooper, 111 F.R.D. 350, 352
(N.D.Ga.1986); see Commercial Credit Equip. Corp. v. Stamps, 920
F.2d 1361, 1368 (7th Cir.1990) (stating that "[v]ideotaped
depositions are a necessary and time effective method of preserving
witnesses' time and allocating precious court and judicial time in
this age of advanced court technology and over-crowded court
calendars. We must not seem reluctant to adopt any and all
time-saving methods that serve to improve our system of justice").
In this case, however, our determination that the taxation for
the cost of video depositions is allowable under § 1920 does not
end our analysis. We must decide whether the copies of the videos
obtained by Reichhold were "necessarily obtained for use in the
case." 28 U.S.C. § 1920(2). Reichhold has offered no explanation
of why it was necessary to obtain a copy of the video tapes for use
in the case. Because the record is inadequate to resolve this
issue, we remand the case to the district court for further
findings on the necessity of the video copying costs that Reichhold
contends are taxable. We find adequate support in the record for
the necessity of deposing Billie Precise, but we have found no
evidence that Reichhold noticed her deposition to be videotaped
rather than transcribed. It is necessary, therefore, to remand
this portion of the case to the district court to allow Reichhold
to present evidence that it noticed Precise's deposition as a video
deposition. Otherwise, Reichhold will be entitled only to costs,
upon proper proof, in the amount of the cost of a stenographic
transcript.
With regard to the fee charged by the videographer, it
appears from the invoices attached to Reichhold's motion to tax
costs that a large portion of the $1,090.42 requested was for video
playback equipment rental. We find nothing in § 1920, the Federal
Rules of Civil Procedure, or case law to support the taxation of
costs for equipment rental or fees charged by a videographer for
playback of video depositions at trial. Therefore, we reverse the
district court's taxation of $1,090.42 for the videography costs
during trial.
III. CONCLUSION
The Morrisons have challenged the district court's trial and
costs rulings. We conclude that the district court's evidentiary
rulings and jury charge were correct. Our review, however,
establishes that the district court erred in its taxation of costs
for expert witness fees in excess of the statutory amount of $40
per day. We also conclude that, although the district court was
correct in its determination that costs of video depositions are
taxable under § 1920(2), it is necessary to remand the case for a
determination of whether the costs incurred by Reichhold with
regard to video deposition tapes were "necessarily obtained for use
in the case" and whether the deposition of Billie Precise was
noticed properly. Accordingly, we remand with instructions to
reduce the taxation of expert witness fees to the statutory amount,
to vacate the taxation of the videography costs during trial, to
determine whether it was necessary for Reichhold to obtain copies
of the video depositions of Dr. Jeong, Dr. Bosshardt, and Dr.
Garretson, to determine whether Billie Precise's deposition was
noticed as a video deposition, and to tax the appropriate costs.
AFFIRMED in part, REVERSED in part, and REMANDED.