Burton v. R.J. Reynolds Tobacco Co.
| Decision Date | 20 October 2005 |
| Docket Number | No. 94-2202-JWL.,94-2202-JWL. |
| Citation | 395 F.Supp.2d 1065 |
| Parties | David BURTON, Plaintiff, v. R.J. REYNOLDS TOBACCO CO., Defendant. |
| Court | U.S. District Court — District of Kansas |
Gregory Leyh, Kansas City, MO, Scott B. Hall, Donald H. Loudon, Jr., Nimrod T. Chapel, Jr, Humphrey, Farrington McClain & Edgar, Independence, MO, for Plaintiff.
Catherine L. Bjorck, Paul G. Crist, Michael A. Nims, Stephen J. Kaczynski, Stephen B. Yeager, Jones, Day Reavis & Pogue, Dallas, TX, Randal S. Baringer, Jones, Day, Reavis & Pogue, Cleveland, OH, Clay Alfred Hartmann, Thomas C. Pavlik, William E. Marple, Sydney Bosworth McDole, Junius C. McElveen, Jr., Jones, Day, Reavis & Pogue, Washington, DC, M. Warren McCamish, Williamson & Cubbison, Frank C. Woodside, III, James D. Griffin, Blackwell Sanders Peper Martin LLP, Kansas City, KS, Nicholas Booke, Chadbourne & Parke LLP, New York, NY, Peter K. Eck, James Mirro, Bruce G. Sheffler, Mary-Jo Middelhoff, Dinsmore & Shohl LLP, Cincinnati, OH, for Defendant.
Plaintiff David Burton filed this personal injury products liability action against defendants Brown & Williamson Tobacco Corporation f/k/a American Tobacco Co. and R.J. Reynolds Tobacco Company. The case proceeded to a jury trial, and the jury returned a verdict in plaintiff's favor and awarded plaintiff compensatory and punitive damages. On appeal, the Tenth Circuit affirmed the compensatory damage award against Reynolds and reversed the award of punitive damages. This matter is now before the court on plaintiff's bill of costs (Docs. 736 & 753) and Reynolds' Motion to Strike and Opposition to Plaintiff's Bill of Costs (Doc. 740). For the reasons explained below, the court will grant the motion in part, deny it in part, and take the remainder under advisement. More specifically, the court will propose to tax costs against Reynolds in the amount of $31,783.60 and will allow the parties an opportunity to submit supplemental briefs, including additional evidentiary materials where pertinent, to clarify whether particular itemized expenses should be taxed under the parameters outlined below.
Plaintiff David Burton filed this lawsuit in 1994. In the lawsuit, he claimed that defendants' cigarettes caused his peripheral vascular disease and addiction. After nearly eight years of pretrial preparation the case proceeded to a jury trial on February 5, 2002. Ultimately, the jury returned a verdict in plaintiff's favor on three of his claims, awarded him $196,416 in compensatory damages and authorized punitive damages against Reynolds, and awarded him $1,984 in compensatory damages from American Tobacco. Plaintiff and American Tobacco reached a settlement after trial and plaintiff dismissed his claims against American Tobacco with prejudice. The court awarded plaintiff $15 million in punitive damages from Reynolds. On February 9, 2005, the Tenth Circuit affirmed the jury verdict against Reynolds on plaintiff's negligent failure to warn and test claims and the award of compensatory damages, but reversed the verdict on liability as to plaintiff's fraudulent concealment claim and the pendent $15 million punitive damage award. See generally Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906 (10th Cir.2005).
On March 11, 2005, plaintiff filed his bill of costs (Doc. 736) seeking $503,570.61 as his costs in this action. This court received the Tenth Circuit appeal mandate on May 16, 2005, and entered a second amended judgment on May 17, 2005. On May 18, 2005, Reynolds filed a Motion to Strike and Opposition to Plaintiff's Bill of Costs (Doc. 740). On June 30, 2005, plaintiff filed an amended bill of costs (Doc. 753) seeking $503,249.37 as his costs. He subsequently filed supplemental supporting documentation (Doc. 752). In light of plaintiff's filing of the amended bill of costs and supplemental documentation, the court permitted the parties to submit supplemental briefs addressing the issue of plaintiff's costs in this case. Thus, each of the parties has had an opportunity to fully address the issue of costs.
The clerk has not yet taxed costs against Reynolds. The court recognizes, however, that requiring the clerk to perform this typically ministerial function would be both unduly burdensome and futile given the hotly contested nature of the voluminous bill of costs exceeding more than a half million dollars. The court therefore ordered the parties to show cause (Doc. 758) why the court should not definitively resolve the issue of costs based on the record currently before the court without requiring the clerk to tax costs in the first instance. Plaintiff did not respond and Reynolds responded that it does not object to the court ruling on the issue of costs without requiring the clerk to tax costs in the first instance. Without objection from the parties, then, the court will proceed to resolve this issue.
In doing so, the court wishes to draw attention to the nature of the record currently before the court. Plaintiff has filed a bill of costs exceeding a half million dollars. His itemization is 62 pages and his supporting documentation is 729 pages. As discussed in more detail below, the overwhelming majority of plaintiff's claimed costs clearly are not taxable under the applicable federal cost statute, 28 U.S.C. § 1920. Plaintiff, rather than recognizing this and devoting his efforts to providing meaningful information to the court so that the court can determine the extent to which arguably taxable costs should be taxed, instead categorically argues that the court should sanction Reynolds pursuant to Rule 11 of the Federal Rules of Civil Procedure and award plaintiff all of these costs. The court is not, however, going to sanction Reynolds because, as explained below, it is unpersuaded that such sanctions are warranted under Rule 11. Consequently, plaintiff's failure to provide the court with more detailed information concerning many of the itemized expenses is not particularly helpful and often inadequate to allow the court to determine whether particular costs should be taxed against Reynolds. Thus although the record at this procedural juncture is voluminous, the meaningful record with respect to many of the particular itemized costs is unfortunately scant.
For this reason, the court will utilize the following procedure. First, the court is issuing below its proposed ruling on plaintiff's bill of costs. The court realizes that once the parties have the benefit of the court's ruling concerning the parameters under which the court intends to tax costs they may be able to provide more meaningful information concerning whether particular costs fall within those parameters. The court, then, will allow the parties to submit supplemental briefs, including any additional evidentiary materials that they believe to be pertinent, asking the court to modify its position with respect to specific costs and specifically addressing the costs which the court is taking under advisement. At that time, the court will not be inclined to revisit the parameters under which it intends to tax costs. Rather, the court simply wishes to give the parties a final opportunity to clarify the nature of particular itemized costs so that the court can accurately determine whether they should be taxed. In doing so, the court is attempting to provide a meaningful substitute for the usual procedure of allowing the parties to seek review of the clerk's taxation of costs. See Fed.R.Civ.P. 54(d)(1) ().
For the reasons set forth below, the court denies Reynolds' request for the court to entirely disallow plaintiff's costs and the court likewise denies plaintiff's request to sanction Reynolds and allow plaintiff to recover all of his claimed costs. The court will, however, endeavor to disallow costs that appear to be attributable to plaintiff's unsuccessful claims as well as to plaintiff's claims against the now-dismissed defendant, American Tobacco. As such, the court proposes to tax costs against Reynolds as follows: $310 as fees of the clerk and marshal; $14,035.26 as fees of the court reporter; $1,665.46 as fees for witnesses; and $15,772.88 as fees for copies, for a total of $31,783.60.
Before delving into the particular itemized expenses in plaintiff's bill of costs, the court will address several threshold considerations. First, Reynolds argues that the court should strike plaintiff's bill of costs or entirely deny it for a variety of reasons. Second, plaintiff argues that the court should sanction Reynolds for its conduct during the litigation in this case and award plaintiff all of his claimed costs. For the following reasons, the court declines to do either.
The Federal Rules of Civil Procedure provide that "costs other than attorneys' fees shall be awarded as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d)(1) (emphasis added). The allowance or disallowance of costs is within the sound discretion of the district court. Zeran v. Diamond Broad., Inc., 203 F.3d 714, 722 (10th Cir.2000). The court's discretion, however, is constrained by the fact that Rule 54 creates a presumption that the court will award costs to the prevailing party. Id. When the court exercises its discretion and denies costs to a prevailing party, it must state a valid reason for doing so. Id. The court may deny costs when the prevailing party was only partially successful, when damages were only nominal, when costs were unreasonably high or unnecessary when recovery was insignificant, or when the issues were close or difficult. Id. Denial of costs is a severe penalty, and therefore there...
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