Keener v. Buehrer

[Cite as Keener v. Buehrer, 2017-Ohio-7749.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
DARRELL KEENER :
:
Plaintiff-Appellant : C.A. CASE NO. 27537
:
v. : T.C. NO. 16-CV-2562
:
STEPHEN BUEHRER, : (Civil Appeal from
ADMINISTRATOR, BUREAU OF : Common Pleas Court)
WORKERS’ COMPENSATION, et al. :
:
Defendants-Appellees
...........
OPINION
Rendered on the ___22nd __ day of _____September_____, 2017.
...........
GARY D. PLUNKETT, Atty. Reg. No. 0046805, 3033 Kettering Blvd., Point West, Suite
201, Dayton, Ohio 45439
Attorney for Plaintiff-Appellant
DAVID C. KORTE, Atty. Reg. No. 0019382 and MICHELLE D. BACH, Atty. Reg. No.
0065313 and JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 West First Street,
Suite 200, Dayton, Ohio 45402
Attorneys for Defendant-Appellee Northmont City School District
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the April 12, 2017 Notice of Appeal of
Darrell Keener. Keener appeals from the Final Judgment Entry of the trial court,
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following a jury trial, reflecting the jury’s verdict that Keener has the right to participate in
the workers’ compensation system for the condition of left inguinal hernia in Claim No.
14-858351, and further ordering the Northmont City School District (“Northmont”) to pay
Keener “and his attorneys reimbursement for litigation expenses of $2,838.82 and
attorney fees of $4,200.00, with interest at the statutory rate from the date of this Final
Judgment Entry.” At issue herein are the cost of the video deposition of Dr. James
deCaestecker, Keener’s expert witness, which the trial court taxed to Keener, and the
cost of the deposition transcript of Dr. Seth Vogelstein, the expert witness for Northmont
City School District, which the trial court also taxed to Keener. For the reasons set forth
herein, the judgment of the trial court as to the cost of deCaestecker’s video deposition is
reversed, and the judgment of the trial court as to the cost of Vogelstein’s deposition
transcript is affirmed.
{¶ 2} Keener filed his Notice of Workers’ Compensation Appeal on May 20, 2016,
in the trial court. After trial, Keener filed, on February 17, 2017, a “Motion for Order on
Plaintiff’s Application for Award of Attorney’s Fees and Expenses.” The Motion provides
that Keener “is entitled to a recovery of his expenses in the amount of $3,246.82 and his
attorneys are entitled to a fee of $4,200.00.” According to Keener, awarding him “all of
the expenses he has incurred in the prosecution of his successful workers’ compensation
case furthers the stated policy of the Legislature – that injured workers’ are entitled to be
fully compensated for all expense they have incurred in successfully asserting their right
to participate in the workers’ compensation system.” Keener argued that the
“Legislature, in enacting the expense-reimbursement provision of R.C. 4123.512 was
mindful of the fact that injured workers are often not in a position to absorb the cost of
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establishing their right to participate in the workers’ compensation system,” and that if
employers are unsuccessful in litigating a workers’ compensation matter, “they are
responsible for the successful claimant’s expenses in proving their right.” Attached in
part is an “Application for Award of Attorney Fees and Expenses,” as well as a “List of
Expenses,” an “Itemized Statement of Attorney Fees,” and the Affidavit of Gary D.
Plunkett. The “List of Expenses” includes: $205.00 for “Accurate Legal Videos;
Videographer Fee for Dr. [deCaestecker] Deposition,” and $203.00 for “Mike Mobley
Reporting; Deposition Transcript of Dr. Vogelstein.” Keener directed the trial court’s
attention to Kilgore v. Chrysler Corp., 92 Ohio St. 3d 184, 749 N.E.2d 267 (2001), and this
Court’s decision in Paris v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871,
2003-Ohio-6673.
{¶ 3} On February 28, 2017, “Defendant, Northmont City Schools’, Memorandum
in Opposition to Plaintiff’s Motion for Order on Plaintiff’s Application for Award of Attorney
Fees and Expenses” was filed. Therein, Northmont noted that it did not object to
awarding Keener’s counsel fees in the amount of $4,200.00, but it objected to the
payment of $205.00 for the videographic expense of the deposition of Dr. deCaestecker,
the payment of $203.00 for a certified copy of Dr. Vogelstein’s deposition transcript, and
the payment of $272.65 for a certified copy of Keener’s deposition transcript. Regarding
deCaestecker’s deposition, Northmont asserted that Keener “may recover the
stenographic or videographic expenses of a physician’s videotaped deposition, but not
both.” Regarding Vogelstein’s deposition, Northmont asserted that Keener’s expense
for obtaining a transcript of Northmont’s expert should not be taxed as a cost to
Northmont, since the transcript was filed on February 2, 2017, and available through the
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clerk’s office. Northmont asserted that “according to the time records attached to
Plaintiff’s Motion * * *, Plaintiff’s counsel spent no time preparing for trial between the date
of Dr. Vogelstein’s deposition on January 19 and February 10. By that time, a copy of
Dr. Vogelstein’s deposition had been available through the clerk for over a week.”
Therefore, according to Northmont, “Plaintiff’s counsel’s expense for obtaining a certified
copy of the deposition transcript was not a necessary cost.” Finally, regarding Keener’s
deposition, Northmont asserted that the original transcript of Keener’s deposition was filed
on January 24, 2017, and Keener’s counsel’s “expense for obtaining a certified copy of
the deposition transcript was not a necessary expense.” Northmont relied upon State ex
rel. Williams v. Colasurd, 71 Ohio St. 3d 642, 646 N.E.2d 830 (1995), George v.
Administrator, Ohio Bureau of Workers’ Compensation, 120 Ohio App. 3d 106, 696 N.E.2d
1101 (2d Dist. 1997), and Robinson v. Conrad, 2d Dist. Darke No. 1604, 2003-Ohio-2961.
{¶ 4} Keener filed “Plaintiff’s Reply to Defendant’s Memorandum in Opposition” on
March 6, 2017. Therein he asserted that “more recent case law has expressly held that
reasonable videotaped deposition expenses could be awarded to a successful workers’
compensation claimant,” pursuant to R.C. 4123.512(F), “and notwithstanding that the
costs of stenographic transcription of the same deposition are reimbursable under R.C.
4123.512(D).” He argued that “fees for certified copies of the defense expert’s
deposition transcript and Plaintiff’s deposition transcript should also be reimbursed as the
‘cost of any legal proceeding’ under R.C. 4123.512(F).” According to Keener, these
“expenses have a direct relation to a claimant’s appeal. The transcripts were reviewed
in preparation [for] trial and then relied upon at the trial itself.” Keener asserted that
Northmont “forced” him “to file an appeal with this Court in order to establish his right to
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participate in the workers’ compensation system,” and he “incurred certain expenses,
including the fee associated with the videographic deposition and the costs of ordering
certified copies of depositions and, as part of the litigation process.” Keener directed the
trial court’s attention in part to Cave v. Conrad, 94 Ohio St. 3d 299, 2002-Ohio-793, 762
N.E.2d 991, and Carrigan v. Shaferly Excavating Ltd., 3rd Dist. Seneca No. 13-11-08,
2011-Ohio-5587.
{¶ 5} In its April 10, 2017 order, the trial court determined as follows (footnotes
omitted):
R.C. 4123.512 demands that the costs and attorney fees of litigation
shall be granted to Plaintiffs in this case. That rationale being “that statutes
providing for reimbursement of costs to successful claimants in workers’
compensation appeals are designed to minimize the actual expenses
incurred by an injured employee who establishes his or her right to
participate in the fund. Accordingly, in enacting statutes such as R.C.
4123.512(F), the General Assembly has demonstrated its intent that a
claimant’s recovery shall not be dissipated by reasonable litigation
expenses connected with the preparation and presentation of an appeal
pursuant to” R.C. 4123.512.
However, not every expense is recoverable. The Second District
has held that, while “reasonable videotaped deposition expenses” are
reimbursable, a claimant may not recover the costs of both the
stenographic and videographic expenses of depositions of medical expert
witnesses.
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In Robinson v. Conrad, [2d Dist. Darke No.1604, 2003-Ohio-2961, ¶
19-21,] the [Second] District further held that a successful claimant could
not recover the costs of a perpetuation deposition transcript when the
original was filed with the court, as such cost was merely for convenience
and not born of necessity.
Therefore, this Court finds that Plaintiff may not receive
compensation for the videographic expense of Dr. [d]eCaestecker’s
deposition ($205) and Dr. Vogelstein’s perpetuation steno transcript ($203).
However, Robinson is silent on the issue of a party’s deposition
transcript. Given that the rationale of R.C. 4123.512(F) * * * is to minimize
Plaintiff’s costs incurred for the successful prosecution of his claim, the court
awards Plaintiff the costs of his deposition transcript.
The Motion is GRANTED in part and OVERRULED [in] part and
Plaintiff is awarded $4200 as and for attorneys’ fees and $2838.82 as and
for litigation expenses.
( The court indicated in a footnote that $2838.82 represents the amount Keener sought
in his motion less the $408.00 for the doctors’ video and transcript.)
{¶ 6} Keener asserts one assignment of error herein as follows:
THE TRIAL COURT ERRED IN DENYING ALL OF THE COSTS OF
PLAINTIFF’S OUT-OF-POCKET COSTS INCURRED IN CONNECTION
WITH THE PREPARATION AND PRESENTATION OF HIS SUCCESSFUL
APPEAL UNDER R.C. 4123.512.
{¶ 7} In Bland v. Ryan, 2d Dist. Montgomery No. 24826, 2012-Ohio-3176, this
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Court noted that the “decision to grant or deny fees and costs under R.C. 4123.512(F)
lies within the sound discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion. * * *.” Id., ¶ 7. “ ‘Abuse of discretion’ has been defined as an
attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons,
Inc., 19 Ohio St. 3d 83, 482 N.E.2d 1248 (1985).” Feldmiller v. Feldmiller, 2d Dist.
Montgomery No. 24989, 2012-Ohio-4621, ¶ 7. “A decision is unreasonable if there is no
sound reasoning process that would support that decision. AAAA Enterprises, Inc. [v].
River Place Community Urban Redevelopment Corp., 50 Ohio St. 3d 157, 553 N.E.2d 597
(1990).” Id.
{¶ 8} Keener asserts that “[c]ourts have interpreted the phrase ‘cost of any legal
proceedings’ liberally in accordance with R.C. 4123.95.” Keener asserts as follows
(footnote omitted):
In [Cave v. Conrad, 94 Ohio St. 3d 299, 2002-Ohio-793, 762 N.E.2d
991], the Ohio Supreme Court addressed an appeal from the Administrator
of Workers’ Compensation who contended that the trial court erred in
awarding videotaped deposition expenses under 4123.512(F) in addition to
the costs of stenographic transcription of the same depositions under
4123.512(D). The court held that reasonable videotaped deposition
expenses may be taxed as costs and awarded to a successful workers’
compensation claimant pursuant to R.C. 4123.512(F). 94 Ohio St. 3d at
303. The court noted the liberal construction of R.C. 4123.512(F) and
specifically disagreed with the Appellant’s argument that neither the Bureau
of Workers’ Compensation nor a self-insured employer should ever be
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responsible for paying for both the videotaped deposition costs and
stenographic deposition costs. Id. at 300.
In the instant case, the trial court ignored Supreme Court precedent
in Cave, and instead relied on a Court of Appeals case that misconstrued
the holding in Cave. In [Robinson v. Conrad, 2d Dist. Darke No. 1604,
2003-Ohio-2961], the court held that “because there is no law mandating
reimbursement for both stenographic and videographic costs of
depositions,” the trial court did not abuse its discretion in refusing to allow
both costs to be taxed as costs. * * *The court in Robinson relied on the
1997 case of [George v. Admin., Ohio Bureau of Workers’ Comp., 120 Ohio
App.3d 106, 696 N.E.2d 1101 (2d Dist. 1997)] for the proposition that either
stenographic or videographic expenses can be taxed as costs, but not both.
***
The Robinson court attempted to distinguish George from Cave by
claiming that the claimant in Cave had incurred expenses only for
videotaping the depositions of two physicians. Robinson, 2003-Ohio-
2961, at ¶ 20. In actuality, the court in Cave, pointed out that both lower
courts allowed the prevailing party to recover videotaped deposition
expenses even though R.C. 4123.512(D) also required the bureau to
pay appellee the costs of the stenographic transcription of the same
depositions. Cave, 94 Ohio St. 3d at 300. * * * The reimbursement of the
stenographic transcription costs under 4123.512(D) was not contested by
the Administrator, and therefore not before the Supreme Court in Cave. Id.
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Even though the issue before the Ohio Supreme Court in Cave was whether
reasonable videotaped expenses were reimbursable under R.C.
4123.512(F), that does not mean that the claimant was not also entitled to
stenographic transcription costs of the same physicians.
The court in Robinson also stated, “no where [sic] in Cave does the
court hold that both stenographic and videographic expenses of depositions
must be taxed as costs.” Robinson, 2003-Ohio-2961 at ¶ 21. However, the
Supreme Court in Cave plainly addressed the propriety of assessing “dual
payments” for both videographic deposition costs and stenographic
depositions costs. The court explicitly disagreed with Administrator’s
contention that neither the bureau nor a self-insured employer should ever
be responsible for paying both videotaped deposition costs and
stenographic deposition cost. Cave, 94 Ohio St. 3d at 300. Underlying
the Supreme Court’s central holding in Cave – that reasonable videotaped
depositions expenses may be awarded to a successful claimant under
4123.512(F) – was the understanding (acknowledged earlier in the
decision) that the claimant was also entitled to stenographic deposition
expenses of the same doctors under 4123.512(D).
The central holding in Cave was properly interpreted by the Third
District in [Carrigan v. Shaferly Excavating Ltd., 3d Dist. Seneca No. 13-11-
08, 2011-Ohio-5587, ¶ 17], which held: “Accordingly, the Supreme Court
determined that reasonable videotaped deposition expenses could be
awarded to successful workers’ compensation claimants as ‘costs of any
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legal proceedings’ under R.C. 4123.512(F) and notwithstanding that the
costs of the stenographic transcription of the same deposition are
reimbursable under R.C. 4123.512(D).” * * *
The holding in Carrigan follows the Supreme Court’s consistent
construction of the term “cost of any legal proceedings” liberally in favor of
employees. * * * It is also in line with recent case law out of the Second
District Court of Appeals, which has adopted a broad interpretation of the
phrase “cost of any proceedings” in R.C. 4123.512(F). Current Second
District case law supports reimbursement of court filings, facsimiles,
messenger services, postage, parking, and any other cost traditionally
charged to clients that have a direct relation to a claimant’s appeal. Paris
v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871, 2003-Ohio-
6673, see also Bland v. Ryan, 2nd Dist. Montgomery No. 24826, 2012-
Ohio-3176.
There is an inherent reasonableness test when it comes to a trial
court’s determination of what costs were necessary to the presentation of
the claimant’s appeal. * * * In the present case, the trial court Order denying
reimbursement of costs implies it was “unreasonable” for Mr. Keener to
order both the stenographic and videographic deposition testimony of Dr.
[d]e[C]aestecker. * * * In fact, Montgomery County Local Rule 1.27(B)(2)
does not permit a video deposition to be presented at trial unless a written
transcript of the deposition has also been filed with the court. Therefore,
dual filing of stenographic and videographic deposition transcripts is not
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only reasonable; it is required.
***
The unequivocal holding of Cave supports the reimbursement of Mr.
Keener’s reasonable videographic deposition expenses notwithstanding the
previous award of the costs associated with obtaining the stenographic
transcript of the deposition of Dr. [d]e[C]aestecker. The videographic
deposition expense should be considered a “cost of any legal proceeding”
under 4123.512(F) and taxed against the employer in this case. Similarly,
Mr. Keener’s cost in obtaining a copy [the] of stenographic deposition of * *
* Dr. Vogelstein, is a reasonable and necessary cost of any legal proceeding
under 4123.512(F).
The trial court’s order denying reimbursement for Dr. Vogelstein’s
stenographic deposition notes that the original transcript was filed with the
court, and, as such, the cost of obtaining a copy of the transcript was
“merely for convenience and not born of necessity.” * * * The trial judge may
be under the mistaken impression that once a transcript was filed with the
court all parties to the case have access to the document via the clerk’s
website. In fact, the electronic copy of the transcript remains locked even
after it is filed with the court. Only the court and defense counsel have
access to the transcript unless an additional copy is ordered from the court
reporter. * * * Seeing as Dr. Vogelstein’s deposition transcript is a cost of
litigation that is traditionally charged to clients and had a direct relation to
Mr. Keener’s successful appeal, it should be reimbursed as a “cost of any
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proceedings” pursuant to R.C. 4123.512(F).
{¶ 9} Finally, Keener asserts that “[f]ailing to reimburse for reasonable litigation
expenses unfairly prejudices a claimant by forcing him to choose between dissipating his
ultimate recovery in the claim or presenting a less persuasive case at trial.”
{¶ 10} R.C. 4123.512(D) and (F) govern a claimant’s recovery costs of an appeal.
R.C. 4123.512(D) provides:
* * * The bureau of workers' compensation shall pay the cost of the
stenographic deposition filed in court and of copies of the stenographic
deposition for each party from the surplus fund and charge the costs thereof
against the unsuccessful party if the claimant's right to participate or
continue to participate is finally sustained or established in the appeal.
{¶ 11} R.C. 4123.512 (F) provides:
The cost of any legal proceedings authorized by this section,
including an attorney's fee to the claimant's attorney to be fixed by the trial
judge, based upon the effort expended, in the event the claimant's right to
participate or to continue to participate in the fund is established upon the
final determination of an appeal, shall be taxed against the employer or the
commission if the commission or the administrator rather than the employer
contested the right of the claimant to participate in the fund. * * *
{¶ 12} As noted by the Supreme Court of Ohio:
R.C. 4123.512(F) applies to claimants who may rightfully participate
in the fund but have been denied that right and have been forced to appeal.
These claimants incur out-of-the-ordinary expense in order to establish their
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right to participate, additional expense that other claimants do not incur.
While just as worthy, their award becomes functionally less than other
claimants with the same injury. R.C. 4123.512(F) serves to diminish that
incongruity.
Kilgore v. Chrysler Corp., 92 Ohio St. 3d 184, 187, 749 N.E.2d 267 (2001).
{¶ 13} We begin our analysis with the Supreme Court’s decision in State ex rel.
Williams v. Colasurd, 71 Ohio St. 3d 642, 646 N.E.2d 830 (1995). Therein, Ervin
Williams’ additional claim was disallowed by the Industrial Commission, he appealed to
the court of common pleas, and after a jury trial, judgment was entered in favor of his
employer. Id. Williams then filed a complaint in mandamus in the Court of Appeals of
Franklin County seeking to compel in part the costs of the video deposition of Dr. Elmer
and of the playback in court of Dr. Elmer’s deposition. Id. at 643. The Supreme Court
interpreted the precursor to R.C. 4123.512(D), namely R.C. 4123.519(C), which provided
in part: “ ‘* * * The cost of the deposition filed in court and of copies of the deposition for
each party shall be paid for by the bureau of workers’ compensation from the surplus fund
and the costs thereof charged against the unsuccessful party if the claimant’s right to
participate or continue to participate is finally sustained or established in the appeal. * *
*.’ ” Id.
{¶ 14} The Court concluded as follows:
Costs of the deposition are payable to a claimant regardless of
litigation success. * * * At issue are the items that fall within the phrase “cost
of the deposition.” Claimant’s position rests largely on the misperception
that “expenses” and “costs” are synonymous. They are not. “ ‘[C]osts’ are
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not synonymous with expenses unless expressly made so by statute.”
Benda v. Fana (1967), 10 Ohio St. 2d 259, 263, 39 O.O.2d 410, 413, 227
N.E.2d 197, 201. * * *
Videotape testimony
Dr. Elmer’s deposition was preserved in both stenographic and
videotape forms. Commission policy permits reimbursement for only one.
The commission argues that reimbursement for both improperly imposes
on the Surplus Fund. The appellate court agreed[.] * * *
***
This result was also suggested in State ex rel. Hakos v. Colasurd
(Dec. 28, 1993), Franklin App. No. 92AP-1151, unreported, at 5, 1993 WL
540288, where the court pointed out that “a claimant initially has the option
of using a written deposition or videotape. The costs of one of these forms
of deposition is reimbursable.”
We recognize that the Court of Appeals for Lawrence County
reached a different result in Clark v. Bur. of Workers’ Comp. (1993), 88 Ohio
App.3d 153, 623 N.E.2d 640. However, given the principle that an
expense is not a “cost” unless expressly made so by statute, we favor the
reasoning employed by the Franklin County Court of Appeals; because
former R.C. 4123.519(C) did not authorize payment for multiple forms of
deposition testimony, reimbursement should not be permitted.
Claimant also argues that the liberal construction mandate of R.C.
4123.95 dictates dual payment. A liberal construction directive, however,
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does not empower us to read into a statute something that cannot
reasonably be implied from the statute’s language. Szekely v. Young
(1963), 174 Ohio St. 213, 22 O.O.2d 214, 188 N.E.2d 424, paragraph two
of the syllabus. Dual payment was, therefore, properly denied.
Id. at 643-44.
{¶ 15} Regarding the video playback in court, the Supreme Court determined as
follows:
Video replay
This is not a recoverable “cost of the deposition” according to Hakos,
supra:
“ * * * Since R.C. 4123.519 does not specifically mandate that the
cost of playing a videotaped deposition be included as surplus fund
payment for the cost of a deposition, this court cannot read into the statute
additional wording or expand the scope of the statute beyond its literal
meaning.” Id. at 5.
Further reinforcing this position is [Gold v. Orr Felt Co., 21 Ohio
App.3d 214, 487 N.E.2d 347 (2d Dist. 1985) 1 ], which suggested that
regardless of the character of litigation, videotape depositions are governed
by C.P.Sup.R. 12(D). Section (D)(1) sets forth various expenses associated
with videotape depositions and specifies by whom the costs are to be
assumed. Section (D)(1)(c) provides that “[t]he expense of playing the
videotape recording at trial shall be borne by the court.” As such,
1
Gold was a negligence action, and it did not involve a workers’ compensation claim.
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reimbursement to claimant is inappropriate.
Id. at 645-46.
{¶ 16} This Court subsequently considered Colasurd, as well as Montgomery
County Local Rule 1.27, in George v. Administrator, Ohio Bur. of Workers’ Comp., 120
Ohio App. 3d 106, 696 N.E.2d 1101 (2d Dist. 1997). The local rule provides: “The Court
shall not accept or permit the audio/video version of the deposition transcript to be
presented during trial or hearing unless a written transcript of the deposition has been
filed in accordance with Subsection (A) of this Rule.” Loc.R. 1.27(B)(2). This Court
determined as follows:
George argues that although an unsuccessful claimant who relies
upon 4123.512(D) may recover only the videographic or stenographic costs
of a videotaped deposition of a physician, but not both,
a successful claimant may rely upon R.C. 4123.512(F), which provides for
the recovery of costs generally, and recover both the videographic and
stenographic costs of the videotaped deposition. We disagree. Based upon
our reading of Colasurd, we conclude that the recovery of the costs of taking
a videotaped deposition of a physician is a special case covered specifically
by R.C. 4123.512(D). The more general statutory provision, R.C.
4123.512(F) does not control the recovery of the costs of taking a
videotaped deposition of a physician.
George also argues that because he is required by Montgomery
County Loc.R. 1.27(1) to file a written transcript within a videotaped
deposition, he should be permitted to recover both his stenographic and
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videographic expenses. This presents a close question, since there is no
indication that the claimant in Colasurd was subject to a similar local rule of
court.
However, as the Supreme Court held in Colasurd, “ ‘ “costs” are not
synonymous with expenses unless expressly made so by statute.’ ” 71 Ohio
St.3d at 643, 646 N.E.2d at 83, quoting Benda v. Fana (1967), 10 Ohio
St.2d 259, 263, 39 O.O.2d 410, 413, 227 N.E.2d 197, 201. Thus, the mere
fact that the costs of preparing a transcript was an expense required by local
rule does not necessarily mean that it is a “cost” that may be recovered
under the statute.
Furthermore, George was not required to submit a videotaped
deposition. He could have offered the transcript of the deposition. We
recognize that the testimony of experts, especially in fields as complex as
medicine, is often far more comprehensible and effective when it is
presented live or in a videotaped format. Our own experience confirms that
this is so. However, George was not legally required to offer the testimony
of his doctor in a videotaped format, and, as the Supreme Court held
in Colasurd, not every expense, no matter how reasonably incurred, is a
recoverable cost under the statute.
Although the issue is close, we agree with the administrator that
George may recover either the stenographic expense or his physician's
deposition, or the videographic expense, but not both.
George at 108-09.
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{¶ 17} In Cave, 94 Ohio St. 3d 299, the Supreme Court of Ohio held at syllabus
that “[p]ursuant to R.C. 4123.512(F), reasonable videotaped deposition expenses may be
taxed as costs and awarded to a successful worker’s compensation claimant in an action
brought pursuant to R.C. 4123.512.” In Cave, Yolanda Cave sought to add an additional
condition to her initial claim, and the Industrial Commission denied the additional
condition. Id. at 299. Cave appealed to the Pike County Court of Common Pleas, and
at the jury trial she presented the videotaped deposition testimony of her two expert
witnesses. Id. The jury returned a verdict in favor of Cave. Id. Cave filed a motion to
tax as costs certain expenses for videotaping her experts, and after a hearing, “the trial
court ordered the videotaped deposition expenses to be paid by the bureau as ‘costs of
legal proceedings’ pursuant to R.C. 4123.512(F).” Id.
{¶ 18} The “Administrator of Workers’ Compensation * * * filed an appeal to the
Pike County Court of Appeals,” and the only issue “was in regard to the trial court’s order
awarding appellee the expenses of the videotaping.” Id. at 300. The Cave Court noted
that both “the trial court and the court of appeals held that R.C. 4123.512(F) entitled
appellee as the prevailing party to recover from the bureau the videotaped deposition
expenses as the ‘cost of any legal proceeding.’ ” Id. The Supreme Court of Ohio further
noted that both “courts arrived at this conclusion even though R.C. 4123.512(D) also
required the bureau to pay appellee the costs of stenographic transcription of the same
depositions.” Id. The Court noted that “Appellant contends that neither the bureau nor a
self-insured employer should ever be responsible for paying” both videotaped deposition
costs and stenographic deposition costs, and the Court disagreed. Id.
{¶ 19} The Cave Court, after reciting the language of R.C. 4123.512(D), noted as
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follows:
In Akers v. Serv-A-Portion, Inc. (1987), 31 Ohio St. 3d 78, 31 OBR
190, 508 N.E.2d 964, the court interpreted paragraph six of former R.C.
4123.519, the substantively identical precursor to R.C. 4123.512(D), as
providing that “[t]he stenographic and reproduction costs of depositions are
to be paid from the Industrial Commission surplus fund under the ‘cost of
the deposition’ provision * * * whether or not the claimant successfully
establishes a right to participate under the Workers' Compensation
Act.” Id. at syllabus; for former R.C. 4123.519, see 137 Ohio Laws, Part II,
3940. The court determined that stenographic and reproduction costs of
depositions are borne by the surplus fund in the first instance and that,
under this section, reimbursement of the surplus fund is conditioned on
claimant's right to participate in the fund being established or sustained on
appeal. In that event, the stenographic and reproduction deposition costs
are to be charged against the nonprevailing party, either the self-insured
employer or the Industrial Commission. Id. at 79-80, 31 OBR at 192, 508
N.E.2d at 965-966. Thus, according to former R.C. 4123.519 and
current R.C. 4123.512(D), a claimant never bears responsibility for
stenographic deposition costs, regardless of the outcome of his or her claim.
Id. at 300-301.
{¶ 20} After reviewing the language of R.C. 4123.512(F), the Cave Court noted as
follows:
This court has on prior occasions concluded that the phrase “cost of
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any legal proceedings” in R.C. 4123.512(F) is considerably broader in
scope than the phrase “cost of the deposition” in R.C. 4123.512(D). In
interpreting this section, this court has consistently adhered to the mandate
of R.C. 4123.95 to construe workers' compensation laws liberally in favor of
employees and the dependents of deceased employees. For instance, in
Moore v. Gen. Motors Corp. (1985), 18 Ohio St. 3d 259, 18 OBR 314, 480
N.E.2d 1101, the court held that an expert witness's fee for preparing for
and giving a deposition was reimbursable under the predecessor section
to R.C. 4123.512(F), R.C. 4123.519. Additionally, we recently held that “an
attorney's travel expenses incurred in taking a deposition of an expert are a
reimbursable ‘cost of any legal proceedings' under R.C. 4123.512(F).”
Kilgore v. Chrysler Corp. (2001), 92 Ohio St. 3d 184, 749 N.E.2d
267, syllabus.
Central to the court's dispositions in Moore and Kilgore was the
rationale that statutes providing for reimbursement of costs to successful
claimants in workers' compensation appeals are “designed to minimize the
actual expense incurred by an injured employee who establishes his or her
right to participate in the fund.” Moore, 18 Ohio St. 3d at 261-262, 18 OBR
at 316, 480 N.E.2d at 1103. Accordingly, in enacting statutes such as R.C.
4123.512(F), the General Assembly “has demonstrated its intent that a
claimant's recovery shall not be dissipated by reasonable litigation
expenses connected with the preparation and presentation of an appeal
pursuant to R.C. 4123.519,” the predecessor of R.C. 4123.512. Id. at
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262, 18 OBR at 317, 480 N.E.2d at 1103; see, also, Kilgore, 92 Ohio St. 3d
at 186, 749 N.E.2d at 271. We see no reason to retreat from that reasoning
now.
Id. at 301.
{¶ 21} The Court next addressed the Administrator’s argument that “costs taxable
to the nonprevailing party are allowed only by authority of statute,” and that pursuant to
Williamson v. Ameritech Corp. 81 Ohio St. 3d 342, 691 N.E.2d 288 (1998), “there is no
statute allowing deposition expenses to be taxed and included in the judgment.” Id.
The Court concluded as follows (footnotes omitted):
It is true that “[t]his court has consistently limited the categories of
expenses which qualify as ‘costs.’ ” Centennial Ins. Co. v. Liberty Mutual
Ins. Co. (1982), 69 Ohio St. 2d 50, 23 O.O.3d 88, 89, 430 N.E.2d 925,
926. “Costs are generally defined as the statutory fees to which officers,
witnesses, jurors and others are entitled for their services in an action and
which the statutes authorize to be taxed and included in the judgment.”
Benda v. Fana (1967), 10 Ohio St. 2d 259, 39 O.O.2d 410, 227 N.E.2d
197, paragraph one of the syllabus. “The subject of costs is one entirely of
statutory allowance and control.” State ex rel. Michaels v. Morse (1956),
165 Ohio St. 599, 607, 60 Ohio Op. 531, 535, 138 N.E.2d 660, 666, principle
reaffirmed Centennial Ins. Co. v. Liberty Mut. Ins. Co., 69 Ohio St. 2d at 51,
23 O.O.3d at 89, 430 N.E.2d at 926, and quoted in Vance v.
Roedesheimer (1992), 64 Ohio St. 3d 552, 555, 597 N.E.2d 153, 156.
Notwithstanding, we find this argument of appellant not to be well
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taken. What appellant fails to recognize is that a distinct difference exists
between civil cases in general and those involving workers' compensation
claims. The court noted in Moore that compared to a tort action where more
than mere economic losses may be sought, “[u]nder the terms of
participation in the State Insurance Fund, a claimant may recover relatively
modest amounts.” Moore, 18 Ohio St. 3d at 262, 18 OBR at 316, 480
N.E.2d at 1103. Thus, because a workers' compensation claim is confined
to recovery of only part of a claimant's economic loses, and “costs” are
expressly provided for in R.C. 4123.512, “the traditional dichotomy between
‘costs' and ‘expenses' in civil cases * * * is not directly applicable in the
workers' compensation area.” Kilgore, 92 Ohio St. 3d at 187, 749 N.E.2d
at 271.
Moreover, the Ohio Rules of Superintendence have made
videotaped deposition costs an exception to the long-standing principle that
costs are allowed solely by statutory authority. We have previously
recognized that videotaped depositions are governed by the Ohio Rules of
Superintendence. State ex rel. Williams v. Colasurd (1995), 71 Ohio St. 3d
642, 645-646, 646 N.E.2d 830, 833, citing Gold v. Orr Felt Co. (1985), 21
Ohio App. 3d 214, 216, 21 OBR 228, 231, 487 N.E.2d 347, 349. In
Williams, the court found that former C.P.Sup.R. 12(D)(1) allowed for
various expenses associated with videotaped depositions and specified “by
whom the costs are to be assumed.” Id. at 645, 646 N.E.2d at 833; see 59
Ohio St. 2d xxxvii for former C.P.Sup.R. 12. Similar provisions are now
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in Sup.R. 13, which provides, “The reasonable expense of recording
testimony on videotape, the expense of playing the videotape recording at
trial, and the expense of playing the videotape recording for the purpose of
ruling upon objections shall be allocated as costs in the proceeding in
accordance with Civil Rule 54.” Sup.R. 13(D)(2).
Furthermore, in Barrett v. Singer Co. (1979), 60 Ohio St. 2d 7, 14
O.O.3d 122, 396 N.E.2d 218, the court held, “The expense of videotape
depositions not used as evidence at trial is to be borne by the party taking
such depositions and not taxed as costs in the action.” (Emphasis
added.) Id. at syllabus. See, also, Fairchild v. Lake Shore Elec. Ry. Co.
(1920), 101 Ohio St. 261, 128 N.E. 168, paragraph three of the syllabus
(“Either party may take depositions while error proceedings are pending in
a reviewing court to reverse the judgment of the trial court. If such
depositions are not used, the expense of taking them cannot be taxed in the
costs of the case.”). In Barrett, the court noted that “the judicial decisions
prior to the adoption of the Ohio Rules of Superintendence reveal that the
expense of depositions taken de bene esse is to be taxed as costs only if
the depositions were used at trial, unless there are overriding
considerations.” (Emphasis sic.) Id. at 9, 14 O.O.3d at 123, 396 N.E.2d at
219.
The videography expenses now in dispute concern the
videographer's attendance and the cost of the videotape. The trial court was
correct to tax costs of the videotaped deposition against the bureau. Sup.R.
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13(D)(1) does provide, however, that “[t]he expense of videotape as a
material shall be borne by the proponent.” Thus, the trial court erred in
including in the award the cost of the videotape as a material.
Accordingly, we hold that pursuant to R.C. 4123.512(F), reasonable
videotaped deposition expenses may be taxed as costs and awarded to a
successful workers' compensation claimant in an action brought pursuant
to R.C. 4123.512. Thus, the judgment of the court of appeals is affirmed in
part and reversed in part, and the cause is remanded to the trial court for
further proceedings consistent with this opinion.
Id. at 302-303.
{¶ 22} As noted above, Keener asserts that this Court “misconstrued the holding
in Cave” in Robinson v. Conrad, 2d Dist. Darke No. 1604, 2003-Ohio-2961. Therein,
after his successful pursuit of a workers’ compensation claim, William J. Robinson
appealed from the decision of the trial court denying his motion for reconsideration of the
assessment of “stenographic and video deposition costs of his expert witness, Dr.
Douglas Gordon, reimbursement for the expert fee associated with his deposition, and
the transcription costs from the deposition of Whirlpool’s expert Dr. Koeppenhoeffer.” Id.,
¶ 7. In his memorandum in support of costs, Robinson “asserted that the expert witness
fee for preparing and giving a deposition is reimbursable and that the stenographic and
reproduction deposition costs are to be charged against the non-prevailing party.” Id.
Further, “Robinson relied on Cave * * * in asserting that videotaped deposition expenses
are also to be taxed against the non-prevailing party.” Id. Whirlpool in response relied
upon George, asserting “that either stenographic or videographic expenses can be taxed
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as costs, but not both.” Robinson, ¶ 8. The trial court ordered Whirlpool to pay the costs
of either the videographic or stenographic costs. Id., ¶ 9.
{¶ 23} In overruling Robinson’s motion for reconsideration, the “trial court stated
that under Cave, * * * it was not required to tax both stenographic and videographic
expenses as costs. The entry also denied Robinson’s request to tax the costs of Dr.
Gordon’s fee and Robinson’s request for reimbursement of the stenographic costs from
Dr. Koeppenhoeffer’s deposition.” Id.
{¶ 24} Robinson’s assigned error on appeal was as follows: “The trial court
committed prejudicial error and abused its discretion by refusing to assess costs against
the non-prevailing party in a workers' compensation case as mandated by Ohio Revised
Code § 4123.512 and authorized by Supreme Court authority.” Id., ¶ 11. Robinson
asserted that Cave overruled George. Id., ¶ 12.
{¶ 25} After reviewing R.C. 4123.512(D) and (F), this Court noted that “[n]ot every
expense is a recoverable cost under R.C. 4123.512(D). * * * Instead, ‘ “costs” are not
synonymous with expenses unless expressly made so by statute.’ ” Id., ¶ 18, citing
Colasurd. After reviewing this Court’s holding in George, this Court held as follows
regarding the videotaped deposition:
Just recently, in Cave, supra, the Ohio [S]upreme [C]ourt reviewed a
trial court's taxing as costs certain expenses for videotaping the depositions
of expert medical witnesses. Unlike George, where the claimant had
incurred stenographic and videographic expenses from the deposition,
Cave had incurred expenses only for videotaping the depositions of two
physicians. The court found that reasonable deposition expenses “may be”
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taxed as costs and awarded to a claimant.
We do not find that the decision in Cave overrules what we stated
in George, as no where in Cave does the court hold that both stenographic
and videographic expenses of depositions must be taxed as costs.
In this case, as in George, Robinson is seeking reimbursement for
stenographic and videographic expenses associated with the deposition of
Dr. Gordon. As in George, Robinson was not required to incur both
stenographic and videographic costs for the deposition of Dr. Gordon.
Contrary to what Robinson would like to believe, this is not a situation similar
to that in Cave where the claimant is seeking reimbursement for
videographic expenses only. Because there is no law mandating
reimbursement for both stenographic and videographic costs of
depositions, we must overrule Robinson's claims. As such, we find that the
trial court did not abuse its discretion in finding that either the stenographic
or the videographic expenses could be taxed as costs, but not both.
Id., ¶ 20-22.
{¶ 26} Regarding the stenographic deposition expenses of Whirlpool’s expert, Dr.
Koeppenhoeffer, this Court concluded as follows:
As the trial court noted: “While it may be wise for Plaintiff's counsel
to review the deposition and to have a copy available for trial preparation
purposes, this was a perpetuation deposition of a defense witness. The
Court finds that Plaintiff was not required to obtain a copy of the deposition
since the original was to be filed. Dr. Koppenhoeffer was the Defendant's
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doctor in this matter and the Defendants {sic} should be responsible to pay
only for necessary costs; the cost of a copy for the convenience of Plaintiff's
counsel is not a necessary expense. The Court does not find any reason to
tax as costs the stenographic deposition expense for a copy to be made
available for Plaintiff's counsel's use.”
We find no abuse of discretion in the trial court's reasoning. The cost
incurred was for the convenience of Robinson and was not a necessary
expense. We must therefore overrule Robinson's claim.
Id., ¶ 24-25.
{¶ 27} Finally, regarding the costs of Robinson’s expert, Dr. Gordon, this Court
noted that the “trial court discretionarily denied Robinson’s request, stating that Robinson
twice requested reimbursement of these fees and twice had failed to provide a copy of
the fees statement involved. Based upon the lack of facts to make a decision, the trial
court overruled his request.” Id., ¶ 26. This Court determined as follows:
R.C. 4123.512(D) authorizes payment of deposition expenses
incurred by a claimant to secure the testimony of a physician. The claimant
is entitled to reimbursement whether she is successful or unsuccessful in
prosecuting her appeal. Akers v. Serv-A-Portion, Inc. (1987), 31 Ohio St. 3d
78, 508 N.E.2d 964; Sturgill v. Elder Beerman, Corp., Greene App. No.
02CA0062, [2003-Ohio-52], ¶ 8. R.C. 4123.512(F) authorizes a trial court to
tax the fee and travel expenses charged by an expert witness as a cost that
is then awarded to a successful claimant. Sturgill, supra, at ¶ 11,
citing Kilgore v. Chrysler Corp., 92 Ohio St. 3d 184, [2001-Ohio-166], 749
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N.E.2d 267. R.C. 4123.513(F) was enacted to “ ‘minimize the actual
expenses incurred by an injured employee who establishes his or her right
to participate in the fund .’ ” Id. at ¶ 12, 749 N.E.2d 267, quoting Moore v.
General Motors Corp. (1985), 18 Ohio St. 3d 259, 261-262, 480 N.E.2d
1101.
As we stated in Sturgill, supra, at ¶ 14, “the cost of ‘live testimony’ by
an expert witness, including fees and travel expenses * * *, may be taxed
as costs pursuant to R.C. 4123.512(F), upon motion properly presented.
The trial court may nevertheless decline to order payment of any part of
such costs which it finds unreasonable. The burden to show
unreasonableness is on the employer or commission against which the cost
would be taxed.”
We cannot find that the trial court abused its discretion in failing to
award those expenses as costs, as Robinson failed to properly present his
motion and provide the necessary facts to the trial court upon which it could
base its decision. Accordingly, we overrule this argument.
Based upon the foregoing discussion, we overrule Robinson's
assignment of error.
Robinson at ¶s 27-30.
{¶ 28} In Paris v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871, 2003-
Ohio-6673, which was decided six months after Robinson, and upon which Keener
relies, Dairy Mart asserted that the “trial court improperly awarded Paris $3,984.91 in
litigation expenses, pursuant to Kilgore v. Chrysler Corp., 92 Ohio St. 3d 184, 749 N.E.2d
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267, [2001-Ohio-166],” and that “only $1,482.50 of those expenses were properly
awarded under R.C. 423.512(F).” Paris, ¶ 30. Dairy Mart argued that Kilgore “does not
support an award for all costs of litigation and that most of the costs and expenses
requested by Paris were simply ordinary costs associated with the practice of law * * *.”
Id.
{¶ 29} This Court determined in part as follows:
In the present case, the trial court held that Paris' request for
reimbursement of the costs of court filings, investigative services, reporting
services, travel expenses, photocopies, trial exhibits, witness fees,
facsimiles, and Federal Express messenger service were costs that are
traditionally charged to clients and that have a direct relation to the
claimant's appeal. The trial court concluded that Paris' expenses were
reasonable costs of litigation, which were recoverable under R.C.
4123.512(F). We agree. Each of the claimed expenses were incurred in
connection with the appeal of Paris' workers' compensation claim. They
were not “ordinary overhead costs and expenses associated with the
practice of law,” as Dairy Mart contends.
We are mindful that Moore, Kilgore and Cave each concerned
expenses incurred in the deposition of a medical expert witness. See,
also, Schuller v. U.S. Steel Corp., Trumbull App. No. 2002-T-0165, [2003-
Ohio-4870] (interpreting Kilgore narrowly). Although the disputed expenses
in the instant case do not concern the deposition of Paris' medical expert,
the principles set forth in Moore, Kilgore and Cave are applicable beyond
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the deposition process and the [S]upreme [C]ourt has not limited those
principles to that factual circumstance. Nor have we done so. In Kilgore v.
Chrysler Corporation (Feb. 4, 2000), Montgomery App. Nos. 17906,
17915, affirmed, 92 Ohio St. 3d 184, 749 N.E.2d 267, we disapproved
of Andrews v. Sajar Plastics, Inc. (1994), 98 Ohio App. 3d 61, 647 N.E.2d
854, which held that “other fees” such as postage, photocopies, Airborne
Express, travel expenses, and the expert's fee for trial attendance, all of
which pertained to the preparation for and presentation of the expert's trial
testimony, were not recoverable. We concluded that the ruling
in Andrews failed to apply the statutory requirement of a liberal construction
in favor of employees in the workers' compensation context and
disregarded the [S]upreme [C]ourt's observation that successful claimants
are entitled to recover significantly greater costs than would be so in
ordinary litigation. Based on the foregoing, we conclude that the trial court
properly held that all of Paris' claimed litigation expenses were recoverable
under R.C. 4123.512(F).
Paris, ¶ 34-35.
{¶ 30} In Schuller v. United States Steel Corp., 103 Ohio St. 3d 157, 2004-Ohio-
4753, 814 N.E.2d 857, the Supreme Court accepted a certified conflict issue for review,
i.e., “ ‘[w]hether an expert’s witness fee for live in-court testimony is a reimbursable cost
of legal proceedings pursuant to R.C. 4123.512(F).’ ” Id., ¶ 4. The Ohio Supreme Court
determined that the “testimony of a medical expert is vital to a workers’ compensation
claimant’s being able to prove that his or her injuries meet the requirements for
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participation in the Workers’ Compensation Fund.” Id., ¶ 13. The Supreme Court
concluded that, “[t]hus, we find that a fee for a witness whose testimony is integral to the
claimant’s case and is directly related to his or her appeal is a reimbursable expense
under R.C. 4123.512(F).” Id.
{¶ 31} Finally, in Bland v. Ryan, 2d Dist. Montgomery No. 24826, 2012-Ohio-3176,
this Court determined that Eugene Bland’s “expenses for photocopies, postage, meals
and parking are costs traditionally charged to clients and have a direct relation to her
appeal,” and are therefore reimbursable under R.C. 4123.512(F), and this Court further
found “Paris controlling on this issue.” Id., ¶1, 13. This Court determined as follows:
In essence, our reading of Kilgore, Schuller [103 Ohio St. 3d 157]
and Paris reveals a three pronged analysis for deciding reimbursement
issues under R.C. 4123.512(F). First, the court must determine whether the
expense is of the type or category for which reimbursement is authorized,
i.e. things lawyers traditionally charge to clients like travel expenses
(Kilgore), expert witness fees (Schuller)[,] photocopies, facsimiles,
investigative service, court filings, etc. (Paris), as opposed to overhead, e.g.
utilities, equipment leases, legal subscriptions and office supplies, which
are not. Next, the court must determine whether those allowable categories
of costs were actually and directly related to the claimant's appeal, i.e.
whether they were reasonably necessary for the effective presentation of
the claim. Finally, the court must decide whether the amount requested for
allowable and directly related expenses was reasonable. Schuller at ¶ 13.
Bland, ¶ 14.
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{¶ 32} Regarding the $205.00 cost of the video deposition of Dr. deCaestecker,
we conclude that the trial court abused its discretion in denying Keener’s motion for the
cost of the deposition, since the cost is not an overhead expense, it is reasonably
necessary to present Keener’s claim, and the amount requested is reasonable. We note
that Civ.R. 54(D) provides: “Except when express provision therefore is made either in
a statute or in these rules, costs shall be allowed to the prevailing party unless the court
otherwise directs.” Sup. R. 13(D)(2) provides: “The reasonable expense of recording
testimony on videotape, the expense of playing the videotape recording at trial * * * shall
be allocated as costs in the proceeding in accordance with Civil Rule 54.”
{¶ 33} Further, we agree with Keener that the Third District in Carrigan v. Shaferly
Excavating Ltd. correctly summarized the holding in Cave, namely that “ ‘reasonable
videotaped deposition expenses could be awarded to a successful workers’
compensation claimant as ‘cost[s] of any legal proceedings’ under R.C. 4123.512(F) and
notwithstanding that the costs of the stenographic transcription of the same deposition
are reimbursable under R.C. 4123.512(D).” Carrigan, ¶ 17. Awarding Keener the cost
of the video deposition is in keeping with the mandate to construe workers’ compensation
laws liberally in favor of employees and the dependents of deceased employees.
Awarding the cost to Keener is further mindful of the distinction between civil cases in
general and workers’ compensation claims, and the General Assembly’s intent that a
claimant’s recovery not be dissipated by reasonable litigation expenses connected with
the preparation and presentation of an appeal pursuant to R.C. 4123.512. Finally,
awarding the cost of the video deposition is consistent with our broad interpretation of
R.C. 4132.512(F) in Paris, and the Ohio Supreme Court’s recognition in Schuller of the
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vitality of expert medical testimony to a workers’ compensation claimant.
{¶ 34} Regarding the $203.00 cost of a certified copy of Dr. Vogelstein’s deposition
transcript, we conclude that such an expense was not necessary or reasonable. The
record before us reflects that Vogelstein’s deposition was taken on January 19, 2017, and
it was filed on February 2, 2017. The jury was empaneled and the verdict was rendered
on February 14, 2017. We note, as Northmont asserts, that the Montgomery County
Clerk of Court’s website identifies certain copies of court documents that the clerk
provides upon request. According to the website, regular copies are available at a cost
of $.10 per page, and certified copies, which are “copies that are signed by a Deputy
Clerk and verified to be true and accurate copies of the original,” are available for $1.00
per page. See www. clerk. co. montgomery. oh. us/pro/Copies RequestInfo
.pdf. (accessed September 5, 2017). The text of Dr. Vogelstein’s deposition is 55 pages
in length, and the $55.00 cost of certified copies of each page is far less than the cost of
$203.00 sought by Keener.
{¶ 35} Based upon the foregoing, the judgment of the trial court is affirmed in part
and reversed in part. The judgment of the trial court denying Keener the cost of
Vogelstein’s deposition is affirmed. The trial court’s judgment denying Keener the cost of
deCaestecker’s video deposition is reversed, and the matter is remanded for proceedings
consistent with this opinion.
............
FROELICH, J. and TUCKER, J., concur.
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Copies mailed to:
Gary D. Plunkett
David C. Korte
Michelle D. Bach
Joshua R. Lounsbury
Hon. Steven K. Dankof