United States District Court, W.D. Virginia, Harrisonburg Division
Barbara S. Williams and Cory R. Ford, WilliamsFord, Leesburg, Virginia, and Michael M. Ain, Ain & Stein, LLC, Rockville, Maryland, for Plaintiff.
Susan L. Mitchell and Matthew D. Banks, Altman, Spence, Mitchell & Brown, P.C., Fairfax, Virginia, for Defendant David Epstein, M.D.
Byron J. Mitchell and Paul T. Walkinshaw, Rawls, McNelis Mitchell, P.C., Richmond, Virginia, for Defendants James Dumont, M.D., and WSC, Ltd., d/b/a Winchester Surgical Clinic, Ltd.
OPINION AND ORDER
JAMES P. JONES, District Judge.
The losing plaintiff in this medical malpractice case has objected to the bills of costs filed by the defendants under Federal Rule of Civil Procedure 54(d)(1). For the reasons that follow, I will exercise my discretion to deny costs.
In this diversity case, the plaintiff Allison Green sought compensation on account of medical care she had received while a patient in a hospital's critical care unit following a highway accident. The plaintiff's theory of liability was that her physicians had failed to diagnosis and properly treat acute compartment syndrome in her left hand - a condition of excessive internal pressure causing inadequate blood flow - resulting in permanent injury to the hand. The case was tried to a jury against defendants David Epstein, M.D., James Dumont, M.D., and WSC, Ltd., doing business as Winchester Surgical Clinic, Ltd., the employer of Dr. Dumont. At the conclusion of a week-long trial, the jury found in favor of the defendants and final judgment was entered on the verdict. Thereafter, the defendants filed bills of costs to which the plaintiff has objected. The parties have submitted briefs in support of their respective positions, and the question of costs is ripe for decision.
"Under Rule 54(d)(1) of the Federal Rules of Civil Procedure, costs should be allowed to the prevailing party' unless a federal statute provides otherwise." Williams v. Metro Life Ins. Co., 609 F.3d 622, 636 (4th Cir. 2010) (quoting Fed.R.Civ.P. 54(d)(1)). There is thus a presumption in favor of an award of costs to the prevailing party. See Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir. 1999); Teague v. Bakker, 35 F.3d 978, 996 (4th Cir. 1994). Costs may be refused under this rule only if the district court "justif[ies] its decision by articulating some good reason for doing so.'" Teague, 35 F.3d at 996 (quoting Oak Hall Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir. 1990)). "Among the factors that justify denying an award of costs are: (1) misconduct by the prevailing party; (2) the unsuccessful party's inability to pay the costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the prevailing party's victory; or (5) the closeness and difficulty of the issues decided." Ellis v. Grant Thornton LLP, 434 F.App'x 232, 235 (4th Cir. 2011) (unpublished).
Pursuant to Dr. Epstein's Bill of Costs, he seeks $11, 376.96, representing costs for deposition transcripts and recordings, printing expenses, and witness travel. In Dr. Dumont's and WSC, Ltd.'s Bill of Costs, they seek $12, 959.25, representing similar costs, but also including fees for witnesses.
The plaintiff has raised various objections to both defendants' requests for costs, including: (1) the defendants' costs were covered by malpractice insurance and not by the defendants individually, (2) the defendants' requests for costs were not timely filed, (3) equity considerations weigh against imposing costs on the plaintiff, and (4) various requested costs are excessive.
First, regarding the plaintiff's non-party payment argument, the plaintiff "does not dispute that Dr. Epstein and Dr. Dumont are the prevailing parties" in this proceeding. (Pl.'s Mot. and Br. in Opp'n to Def. Epstein's Rule 54 Bill of Costs 1, ECF No. 188.) The plaintiff suggests, however, that the defendants' costs were actually paid by their respective malpractice insurance carriers. As a result, the plaintiff argues that no costs should be reimbursed to the defendants, because they did not actually pay any costs for their representation.
In support of her position, the plaintiff references Virginia law, pointing out that an insurer is not a proper party to an action against an insured tortfeasor. The plaintiff concludes that because the defendants' insurers cannot be parties to this proceeding, they cannot be reimbursed for the costs they incurred on behalf of their insureds.
The plaintiff's argument is not supported by federal case law interpreting Rule 54(d)(1). Even if a prevailing party's costs are paid by a non-party, there is no blanket prohibition against a prevailing party's recovery of costs. See Scallet v. Rosenblum, 176 F.R.D. 522, 524 (W.D. Va. 1997) (concluding that there is no requirement to trace the original source of funds to recover costs); Kevin M. Ehringer Enters., Inc. v. McData Servs. Corp., No. 3:06-CV-812-L (BH), 2012 WL 1835759, at *2 (N.D. Tex. Apr. 30, 2012) ("On its face, Rule 54(d) merely provides that costs should be allowed to a prevailing party' and does not create an exception for a prevailing party whose costs are paid by another."); Guarrasi v. Gibbons, No. 07-5475, 2011 WL 382598, at *1 (E.D. Pa. Feb. 3, 2011) ("Indeed, other courts that have considered the issue have concluded that costs may be awarded to a prevailing party even if such costs were initially paid by a third party on the prevailing party's behalf.'" (citation omitted)).Furthermore, at least one circuit court of appeals has specifically found that costs covered by a non-party insurer are recoverable by the insured as the prevailing party. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638-39 (11th Cir. 1991); see also Bilezikjian v. Baxter Healthcare Corp., No. 92 CIV. 9498(HB), 1999 WL 945522, at *2 (S.D.N.Y. Oct. 18, ...