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declining to award costs due to plaintiff's inability to pay and ongoing medical bills
Summary of this case from Borum v. Brentwood Vill., LLCOpinion
Civil Action No. 1:15-cv-868
2020-02-24
N.O., a minor, BY Christine ORWIG, her mother and Next Friend and Christine Orwig, individually, Plaintiffs, v. ABOUT WOMEN OB/GYN, P.C. and Marc Alembik, M.D., Defendants.
Scott Michael Perry, Leslee Michael Soudrette, Mikhael David Charnoff, Perry Charnoff PLLC, Arlington, VA, Laurie Ann Amell, Regan Zambri & Long, Washington, DC, for Plaintiffs. J. Jonathan Schraub, Paige Levy Smith, Sands Anderson Marks & Miller, McLean, VA, for Defendants.
Scott Michael Perry, Leslee Michael Soudrette, Mikhael David Charnoff, Perry Charnoff PLLC, Arlington, VA, Laurie Ann Amell, Regan Zambri & Long, Washington, DC, for Plaintiffs.
J. Jonathan Schraub, Paige Levy Smith, Sands Anderson Marks & Miller, McLean, VA, for Defendants.
ORDER
T.S. Ellis, III, United States District Judge
The unfortunate events that gave rise to this medical malpractice litigation may be succinctly summarized. In 2011, Ms. Orwig resided in Woodbridge, Virginia, while pregnant with N.O. During her pregnancy, Ms. Orwig received medical care at defendant About Women Ob/Gyn, P.C., specifically from defendant Dr. Marc Alembik, M.D., a physician employed with About Women Ob/Gyn, P.C. On or about October 13, 2011, defendants documented that Mr. Orwig likely had chorioamnionitis, a bacterial infection in the fetal membranes, and defendants elected to induce labor and deliver N.O. Upon delivery, N.O. was diagnosed with meningitis and sepsis and subsequently developed a Grade III bleed and hydrocephalus, from which N.O. now permanently suffers.
Plaintiffs alleged that defendants were negligent (i) by failing to prescribe appropriate medication to guard against known causes of chorioamnionitis; (ii) by failing to monitor Ms. Orwig's condition while knowing that chorioamnionitis was on the differential diagnosis; and (iii) by failing to perform a timely cesarean delivery of N.O. in the face of likely infection, choosing instead to deliver N.O. vaginally. After a seven-day trial, the jury returned a verdict in favor of defendants, finding that plaintiffs had not proven by a preponderance of the evidence that defendants failed to meet the appropriate standard of care. Plaintiffs appealed, and the Fourth Circuit affirmed. N.O. by Orwig v. Alembik , 694 F. App'x 895 (4th Cir. 2017).
At issue now is defendants' Bill of Costs. Defendants seek $28,613.25 in costs, consisting of: (i) $170.00 in fees for the service of subpoenas; (ii) $6,751.48 in costs for deposition transcripts; (iii) $19,152.50 in costs for daily trial transcripts; (iv) $2,468.61 in printing costs; and (v) $70.66 in copying costs.
Defendants originally requested $29,198.25 in costs, but defendants have withdrawn $585.00 from their request because that $585.00 related to a deposition transcript for a deposition taken in an entirely different case (Michael J. Osborne, et al. v. Matthew T. Mayr, M.D., et al. ).
Plaintiffs objected to defendants' bill of costs, arguing that the court should exercise its discretion to deny an award of costs because of plaintiff's inability to pay and the closeness and difficulty of the issues decided. Specifically, plaintiff's memorandum in opposition and attached exhibits, which include an affidavit from Ms. Orwig, show (i) that Ms. Orwig made between $22,000 and $30,000 annually between 2013 and 2016 from working nights and weekends as a beverage manager at Morton's Steakhouse, (ii) that the costs of N.O.'s medical care through May 2016 exceeded $1,400,000, and (iii) that plaintiffs' family is currently in medical debt, credit card debt, and legal debt. In the alternative, plaintiffs argue that the court should deny many of the requested costs as unrecoverable pursuant to 28 U.S.C. § 1920.
N.O., a minor who suffers from hydrocephalus and cerebral palsy, obviously does not have any independent income to pay an award of costs.
In response, defendants contend that plaintiffs failed to offer sufficient evidence that the issues decided were close and argue that the costs requested are recoverable pursuant to 28 U.S.C. § 1920. Notably, defendants have not addressed plaintiffs' contention that they are unable to pay these costs based on their limited financial means.
Rule 54(d), Fed. R. Civ. P., provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." To define which costs may be taxed against a losing party, courts refer to 28 U.S.C. § 1920, which provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic
transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
28 U.S.C. § 1920. The Fourth Circuit has recognized that district courts may exercise discretion not to award costs because of (i) the prevailing party's misconduct, (ii) the losing party's inability to pay the costs, (iii) the excessiveness of the costs in a particular case, (iv) the limited value of the prevailing party's victory, or (v) the closeness and difficulty of the issues decided. Cherry v. Champion Intern. Corp. , 186 F.3d 442, 446 (4th Cir. 1999) ; see also Ellis v. Grant Thornton LLP , 434 F. App'x 232, 235 (4th Cir. 2011). These principles, applied here, point persuasively to the conclusion that plaintiffs should not be taxed for defendants' costs in this case. Plaintiffs' financial situation demonstrates their inability to pay, and defendants' bill of costs is excessive.
First, plaintiffs brought this medical malpractice action in good faith, which is a prerequisite to relief from the presumptive application of Rule 54(d), Fed. R. Civ. P. Cherry v. Champion Intern. Corp. , 186 F.3d 442, 447 (4th Cir. 1999). Moreover, plaintiffs' modest means indicate that the taxation of costs would pose an unjust financial hardship in this case. Ms. Orwig works nights and weekends as a beverage manager at Morton's Steakhouse. In that position, Ms. Orwig earned $22,909.74 in 2013, $22,436.29 in 2014, and $29,273.83 in 2015, and Ms. Orwig expected to earn approximately $30,000 in 2016. N.O., a minor who suffers from hydrocephalus and cerebral palsy, obviously does not have any independent income. Thus, defendants' request for $28,613.25 in costs represents a full year of plaintiffs' pre-tax income.
See Dkt. 111-1, at ¶ 13.
Moreover, Ms. Orwig cannot work full-time because she is the primary caregiver for N.O. during the day, and N.O. cannot dress herself or walk up or down stairs unassisted. N.O. has required nineteen surgeries during the first four years of her life due to her neurological conditions, and the cost of her healthcare through May 2016 has exceeded $1,400,000. As a result of Ms. Orwig's limited income and N.O.'s significant medical bills, plaintiffs' family is over $212,000 in debt. Accordingly, the record adequately supports sustaining plaintiffs' objections to defendants' bill of costs because of plaintiffs' inability to pay and the "injustice [that] a presumptive cost award" would cause in this case. Ellis v. Grant Thornton LLP , 434 F. App'x 232, 234 (4th Cir. 2011) (holding that the district court did not abuse its discretion in finding that when the non-prevailing party's annual salary at trial was $52,630.00 and he had since retired, an award of $61,957.45 in costs would work a substantial hardship on the non-prevailing party).
Ms. Orwig is also the primary caregiver for two other minor children. See Dkt. 111-1, at ¶¶ 7-9.
See Dkt. 111-1, at ¶¶ 26. Although plaintiffs do have medical insurance, they still have significant out-of-pocket costs for medical care both due to an annual deductible of between $8,500 and $12,000 and due to non-covered medical costs. See id. at ¶¶ 16-18, 26-28.
Plaintiffs' family's debts as of May 13, 2016 consisted of: (i) $1,500 owed to the Children's Hospital of San Antonio; (ii) $300 owed to a radiologist; (iii) $350 owed to a neurosurgeon; (iv) $10,000 in credit card debt; and (v) over $200,000 in legal fees owed to plaintiffs' counsel in this case. See Dkt. 111-1, at ¶¶ 22, 36. Ms. Orwig has informed her attorneys that it is unlikely her family will ever be able to pay the expenses her lawyers advanced for this litigation. Id. at ¶¶ 36-37.
See also Musick v. Dorel Juvenile Grp., Inc. , No. 1:11CV00005, 2012 WL 473994, at *2 (W.D. Va. Feb. 13, 2012) (denying $51,237.47 bill of costs in products liability personal injury case because family was of modest means and because "the immense financial burden of providing life-long care to [plaintiff]" made it unlikely plaintiffs' family would "ever have the ability to pay"); Skeberdis v. Brill , No. 1:17-CV-00404-PX, 2019 WL 5625849, at *2 (D. Md. Oct. 31, 2019) (denying bill of costs for $28,911.40 in medical malpractice case where non-prevailing party had yearly incomes of $6,902 and $92); Levy v. Lexington County, S.C. , No. CA 3:03-3093-MBS, 2012 WL 6675051, at *3 (D.S.C. Dec. 20, 2012) (denying $12,898.70 in costs where non-prevailing parties had yearly incomes of $44,598 and $109,647, and also had $21,000 in outstanding debt, because non-prevailing parties were found to be of "modest means"); Musick v. Dorel Juvenile Grp., Inc. , No. 1:11CV00005, 2012 WL 473994, at * 1-2 (W.D. Va. Feb. 13, 2012) (denying bill of costs in products liability personal injury claim after review of plaintiff's limited financial means); Broccoli v. Echostar Commc'ns Corp. , 229 F.R.D. 506, 517 (D. Md. 2005) (finding the non-prevailing party, who had an annual income of $3,627.07, was "clearly" of sufficiently modest means to justify denial of $16,104.40 in costs).
In addition to plaintiffs' inability to pay any costs in this case, defendants have requested excessive costs, which the Fourth Circuit has recognized as an independent reason for denial of a presumptive cost award. See Cherry v. Champion Intern. Corp. , 186 F.3d 442, 446 (4th Cir. 1999). Specifically, 67% of defendants' bill of costs, $19,152.50, represent the costs for production of daily trial transcripts. Title 28 U.S.C. § 1920(2) limits costs that may be taxed to those "transcript[s] necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Here, although the transcripts may have been helpful to defense counsel in preparing for various aspects of trial, daily trial transcripts were not necessary in this particular case. See Walker v. Mod-U-Kraf Homes, LLC , No. 7:12CV00470, 2015 WL 4400227, at *4 (W.D. Va. July 17, 2015) (finding that daily trial transcripts were not necessary in the case and thus refusing to tax those costs on the non-prevailing party). In addition, the invoices submitted to substantiate defendants' deposition costs of $6,751.48 include costs associated with video conferencing and other ancillary fees which should not be taxed to a non-prevailing party, and defendants' copying costs include charges for an excessive number of copies of the trial materials. As such, excessive costs for items that do not meet the necessity requirement in 28 U.S.C. § 1920 make up the majority of defendants' bill of costs.
Because of plaintiffs' inability to pay the bill of costs given their modest means and their significant ongoing medical bills and because the majority of defendants' bill of costs are excessive costs, defendants' bill of costs is denied in its entirety.
Accordingly,
It is hereby ORDERED that plaintiffs' Objections to defendants' Bill of Costs (Dkt. 111) are SUSTAINED.
It is further ORDERED that defendants' Bill of Costs (Dkt. 110) is DENIED in its entirety.