Coolidge v. United States

• Decision Date: 31 March 2021
• Docket Number: 10-CV-363S
• Parties: WILMA COOLIDGE, as Executor of the Estate of Howard Southard, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Western District of New York

WILMA COOLIDGE, as Executor of the Estate of Howard Southard, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

10-CV-363S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 31, 2021

DECISION AND ORDER

Contents

I. Introduction .............................................................................................................. 2

II. Background .............................................................................................................. 3

A. Facts ..................................................................................................................... 3

B. Procedural History ................................................................................................ 4

1. Plaintiff's Motion for New Trial or Amended Judgment (No. 224) ................... 4

2. Plaintiff's Bill of Costs (Nos. 226, 235) ............................................................ 5

C. Plaintiff's Motion for New Trial (Docket No. 224) .................................................. 6

1. Plaintiff's Initial Arguments (Docket No. 224) .................................................. 6

2. The Government's Response (Docket Nos. 231, 232) .................................... 8

3. Plaintiff's Reply (Docket Nos. 251, 252, 261) .................................................. 9

4. Government Sur-Reply (Docket Nos. 257, 258) ........................................... 11

D. Plaintiff's Amended Bill of Costs (Docket Nos. 235, 226) ................................... 12

III. Discussion of Motion for New Trial and Amend Judgment (Docket No. 224) ..... 14

A. Applicable Standards for Motion for New Trial and Amend Judgment ................ 14

B. Conscious Pain and Suffering ............................................................................ 17

1. The Duration of Conscious Pain and Suffering ............................................. 18

2. The Rate ....................................................................................................... 21

3. Calculation of Damages ................................................................................ 24

C. Fear of Impending Death .................................................................................... 25

D. Plaintiff's Total Damages .................................................................................... 34

IV. Discussion of Plaintiff's Amended Bill of Costs (Docket No. 235, Ex. A) ............ 35

A. Applicable Standards for Recovery of Costs ...................................................... 35

B. Undisputed Costs ............................................................................................... 37

C. Transcript Costs ................................................................................................. 37

1. Original Transcription Costs .......................................................................... 37

2. Dr. Nader's Transcript ................................................................................... 41

3. Costs of Evidentiary Ruling Transcript .......................................................... 44 4. Esquire Deposition Solutions ........................................................................ 45

5. Recoverable Transcription Costs .................................................................. 47

D. Duplication Charges ........................................................................................... 48

1. In-House Duplication Costs ....................................................................... 48

2. Other Duplication Charges Claimed .......................................................... 50

E. Plaintiff's Claimed Other Costs ........................................................................... 51

F. Acceptable Costs ................................................................................................ 52

V. Conclusion ............................................................................................................. 53

VI. Orders ................................................................................................................ 53

I. Introduction

Before this Court is Plaintiff's Motion¹ (Docket No. 224) for a new trial or amendment of the Judgment (Docket No. 221) on damages following her 2018 Federal Tort Claims Act bench trial. Plaintiff is the executrix of her late brother, Howard Southard. Following the bench trial, this Court found that Plaintiff's damages totaled $2,115,436.64, for the pain and suffering, consciousness of impending death, funeral expenses, and the losses of the heirs of Mr. Southard. (Docket No. 220, Coolidge v. United States, No. 10CV363, 2020 WL 3467423 (W.D.N.Y. June 25, 2020).)

In this motion, Plaintiff contends that Howard Southard suffered longer and more severely than was found by this Court. Thus, she moves either that the judgment be altered to reflect the greater suffering endured or a new trial ordered. Familiarity with much of the evidence and the Decision and Order (id.) following the bench trial is presumed.

For the reasons stated herein, Plaintiff's Motion for a New Trial (Docket No. 224) is denied, but her motion for amendment of the Judgment (id.) is granted in part. A new trial will not be held but the judgment for Plaintiff is increased to total $3,915,436.64.

Meanwhile, Plaintiff submitted (Docket No. 226) and then amended (Docket No. 235, Ex. A) her Bill of Costs. Following the Government's objections (e.g., Docket No. 228) and extensive briefing discussed below, for the reasons stated herein, this Court awards Plaintiff costs totaling $11,974.50, based upon the Amended Bill of Costs.

II. Background

A. Facts

Plaintiff sued for malpractice upon Howard Southard and his wrongful death while hospitalized at the Veterans Affairs Medical Center in Buffalo, New York. At the conclusion of the bench trial, this Court found for Plaintiff and awarded her a total of $2,115,436.64 for Mr. Southard's pain and suffering and wrongful death and other injuries, Coolidge v. United States, supra, 2020 WL 3467423 (W.D.N.Y. June 25, 2020) (Docket No. 220).

Pertinent to the arguments in Plaintiff's pending motion are $1,740,000.00 of that award for Mr. Southard's conscious pain and suffering and $366,663.00 for fear of his impending death. Plaintiff argues that these figures did not adequately compensate for his losses.

This Court found that Mr. Southard suffered conscious pain and suffering for 58 days of the 118 days of hospitalization, excluding time during his palliative care and days when his medical record noted that he was alert and indicated no pain, Coolidge, supra, 2020 WL 3467423, at *36. Applying this Court's earlier decision in Kolerski v.United States, 06CV422, 2008 WL 4238924 (W.D.N.Y. Sept. 8, 2008) (Skretny, J.), and citing New York State cases as comparative cases (but acknowledging that these cases are no way factually close to what Mr. Southard endured, Coolidge, supra, 2020 WL 3467423, at *33-34, 36), this Court found that a rate of $30,000.00 per day for Mr. Southard's conscious pain was reasonable compensation. At $30,000.00 per day, this Court calculated damages for suffering he endured for 58 days totaled $1,740,000.00. Id. at *36.

On Mr. Southard's claim for his fear of impending death, this Court found he feared from July 16, 2009, when he learned that continued dialysis would do him no good with prior knowledge that, if taken off dialysis, he would perish, id. at *37. Again comparing New York State cases (again none having similar duration realizing death was imminent or overall hospitalization as endured by Mr. Southard, see id. at *37), this Court found that a rate of $33,333.00 per day (the average of those cases' damage awards calculated to a per day rate) was applicable and reasonable compensation for the last eleven days of his life for his apprehension of his death totaled $366,663.00, id. at *38.

B. Procedural History

1. Plaintiff's Motion for New Trial or Amended Judgment (No. 224)

Following entry of Judgment (Docket No. 211), Plaintiff filed the pending motion for a new trial (Docket No. 224). Responses to this motion initially were due by August 27, 2020, and any reply by September 10, 2020 (Docket No. 227). This schedule was extended (see Docket No. 229), with the response due September 15, 2020, and reply by October 15, 2020 (Docket No. 230). Plaintiff moved to extend that reply deadline(Docket No. 233) and this Court granted that motion, resetting that deadline for November 12, 2020 (Docket No. 237).

Defendant responded (Docket Nos. 231, 232). Plaintiff then initially replied (Docket No. 238). Plaintiff later moved for leave to amend her Reply (Docket No. 239). After a December 2, 2020, status conference on the motion for leave to amend (Docket No. 243), this Court granted conditional leave to amend her Reply (Docket Nos. 244, 247). Plaintiff then filed her revised Reply papers (Docket Nos. 251 (Attorney's Reply Declaration), 252 (Revised Reply Memorandum and Exhibit)); this Court considers Plaintiff's revised Reply (Docket Nos. 251, 252) instead of the original Reply (Docket No. 238). The Government then filed its Sur-Reply papers (Docket Nos. 257, 258). Plaintiff sought leave to reply to the Government's Sur-Reply (Docket No. 259) which was denied but Plaintiff was allowed to correct her counsel's Reply Declaration (Docket No. 260; see Docket No. 261).

2. Plaintiff's Bill of Costs (Nos. 226, 235)

Meanwhile, on July 27, 2020, Plaintiff filed her Bill of Costs (Docket No. 226; see Docket No. 235, Pl. Reply Ex. B) and the Government objected to most of the costs claimed (Docket No. 228). This Court ordered Plaintiff's reply to be due on October 15, 2020 (Docket No. 230), cf. W.D.N.Y. Loc. Civ. R. 54(c). Plaintiff submitted with her Reply an Amended Bill of Costs (Docket No. 235, Ex. A). This Court considered the Amended Bill of Costs.

On the Government's request (Docket No. 236), this Court then granted the...