Judge: John J. Kralik, Case: BC635281, Date: 2024-05-03 Tentative Ruling
Case Number: BC635281 Hearing Date: May 3, 2024 Dept: NCB
North
Central District
Department B
|
adam
eagle,
a minor, by and through his Guardian Ad Litem, Aviva Eagle, Plaintiff, v. providence
st. joseph hospital, et
al., Defendants. |
Case No.: BC635281 Hearing Date: May 3, 2024 [TENTATIVE] order RE: motion to Tax costs |
BACKGROUND
A.
Allegations
On August 3, 2015, Decedent Davis Eagle (“Decedent”)
employed and retained Defendants Sachin Navare, M.D., Robert Gottner, M.D., and
Mayur Patel, M.D. to examine, care, diagnose, and treat Decedent for his
physical condition and complaints. Plaintiff
Adam Eagle (“Plaintiff”), the sole heir of Decedent, alleges that Defendants
negligently provided medical care to Decedent, leading to his death. The complaint, filed September 26, 2016,
alleges a single cause of action for wrongful death (medical malpractice).
B. Relevant
Background
The
matter went to jury before a trial. On
February 15, 2024, the jury entered the special verdict form. On February 26, 2024, the Judgment After Jury
Trial was entered as follows:
IT IS ORDERED, ADJUDGED AND DECREED that
Plaintiff, Adam Eagle take nothing by his action and that Judgment be entered
forthwith in favor of Defendants Sachin Navare, M.D., Bharat Shah, M.D., David
Mok, M.D., and Brian Tzung, M.D.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that as the prevailing parties, Defendants Sachin Navare, M.D., Bharat
Shah, M.D., David Mok, M.D., and Brian Tzung, M.D. shall recover costs, as
permitted by California law, from Plaintiff, Adam Eagle in an amount to be
determined by a timely filed Memorandum of Costs.
(2/26/24 Judgment After Jury Trial at
p.4.)
C. Motion on Calendar
On March 14, 2024,
Defendants Dr. Navare, Dr. Shah, and Dr. Mok (hereinafter, “Defendants”) filed
a Memorandum of Costs, seeking the following costs:
·
Item 1. Filing and Motion Fees -
$611.30
·
Item 2. Jury Fees - $2,232.36
·
Item 4. Deposition Costs - $9,161.75
·
Item 8. Witness Fees – $57,475.00
·
Item 11. Court Reporter Fees as
Established by Statute - $8,895.00
·
Item 12. Models, Enlargements, and
Photocopies of Exhibits - $17,874.00
·
TOTAL: $96,249.41
On March 21, 2024, Plaintiff filed a
motion to tax costs.
On April 22, 2024, Defendants filed an
opposition brief.
LEGAL STANDARD
In ruling on a motion to tax costs, the Court
determines whether the statute expressly allows the particular item and whether
it appears proper on its face. (Gorman
v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) If so, the burden is on the objecting party
to show that the costs are unnecessary or unreasonable. (Id.) Where costs are not expressly allowed by
statute, the burden is on the party claiming costs to show the costs were
reasonable and necessary. (Id.)
Whether a cost item was reasonably
necessary to the litigation presents a question of fact for the trial court and
its decision is reviewed for abuse of discretion. (Id.)
Discussion
Plaintiff moves to
tax expert witness fees and costs for models, enlargements, photographs, and
exhibits.
CCP § 1033.5(a)(8)
provides that an allowable cost includes “[f]ees of expert witnesses ordered by
the court.”
Plaintiff moves to
tax the witness fees for Daniel Wohlgelernter, M.D. in the amount of $48,000,
arguing that Dr. Wohlgelernter only reviewed the depositions of 3 defendant
doctors and provided a half-day of testimony in court at $6,000 per day. Plaintiff argues that Dr. Wohlgelernter did
not provide any opinions specifically showing echoes or discussing the EKG. In
opposition, Defendants argue that they found additional bills that brings the
total for Dr. Wohlgelernter’s fees to $58,725, but they will only seek
$48,000. With the opposition papers,
Defendants provide the bills for time incurred by Dr. Wohlgelernter. (Opp. at Ex. B.) The Court will allow most of
the fees incurred by Dr. Wohlgelernter, but will reduce the cost by $5,000 to
account for the potential overuse of time preparing for and having phone
conferences with counsel and the amount of time reviewing documents.
Plaintiff also
moves to tax the witness fees for Jeffrey Milliken, M.D. in the amount of
$5,271 because he was not even called as a witness. Plaintiff believes that Dr. Milliken was not
called because Defendants’ testimony contradicted Dr. Wohlgelernter’s opinions
on causation. In opposition, Defendants
have provided the invoices for Dr. Milliken’s time spent on this action. (Opp. at Ex. C.) The Court finds the costs reasonable and will
not tax these costs. It is not unusual
for defense counsel to make strategic decisions limiting experts or other
witnesses as a case progresses. Witness who appear necessary at the beginning
of trial no longer look necessary at the end of trial in many cases.
The motion is
granted in part such that the Court will strike $5,000 from the witness fees of
Dr. Wohlgelernter only.
B.
Models, enlargements, and photocopies of
exhibits
An allowable cost under CCP §1033.5(a)(13)
includes: “[m]odels, the enlargements of exhibits and photocopies of exhibits,
and the electronic presentation of exhibits, including costs of rental
equipment and electronic formatting, may be allowed if they were
reasonably helpful to aid the trier of fact.”
Plaintiff moves to tax costs in the amount of $17,874,
arguing that only one exhibit of an image of Dr. Navare was used on direct
examination and that no other exhibits were used. Other than the notice of motion at page 2,
Plaintiff does not again argue the unreasonableness of this cost in the
one-page memorandum of points and authorities.
Even if only one image was used during trial, numerous
exhibits were submitted and admitted by the Court during the trial. Thus, the fact that only one enlarged exhibit
was used is not sufficient to strike the entirety of the $17,874 cost. Further, in opposition, Defendants have
provided an invoice showing that they incurred $17,874 in costs from Visual
Evidence. (Opp. at Ex. D.)
The Court denies the motion to strike the costs for models,
enlargements, and photocopies of exhibits.
CONCLUSION
AND ORDER
Plaintiff
Adam Eagle’s motion to tax costs is granted in part and denied in part. The costs awarded to Defendants Sachin
Navare, M.D., Bharat Shah, M.D., and David Mok, M.D. shall be as follows:
·
Item 1. Filing and Motion Fees -
$611.30
·
Item 2. Jury Fees - $2,232.36
·
Item 4. Deposition Costs - $9,161.75
·
Item 8. Witness Fees – $52,475.00 ($5,000
reduction)
·
Item 11. Court Reporter Fees as
Established by Statute - $8,895.00
·
Item 12. Models, Enlargements, and
Photocopies of Exhibits - $17,874.00 (no reduction)
·
TOTAL: $91,249.41
Plaintiff shall
provide notice of this order.
DATED: May 3, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court