Quy v. Air America, Inc., 80-2327

• Decision Date: 20 October 1981
• Docket Number: No. 80-2327,80-2327
• Citation: 215 U.S.App.D.C. 181,667 F.2d 1059
• Parties: , 215 U.S.App.D.C. 181 Lam QUY, et al. v. AIR AMERICA, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1059

667 F.2d 1059

71 A.L.R.Fed. 859, 215 U.S.App.D.C. 181

Lam QUY, et al. v. AIR AMERICA, INC., Appellant.

No. 80-2327.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 16, 1981.

Decided Oct. 20, 1981.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 74-00428).

Lawrence Mentz, New York City, with whom Thomas J. Whalen and Moffett B. Roller, New York City, were on brief for appellant.

Harriette K. Dorsen, New York City, with whom Robert X. Perry, Jr., Washington, D. C., and John C. Lankenau, New York City, were on brief for appellees.

Before BAZELON, Senior Circuit Judge, and TAMM and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This action is an appeal from an Order Approving Additional Costs, dated September 22, 1980, issued by the District Court in favor of plaintiffs (appellees). Appendix ("App.") 110a. The disputed costs were awarded after appellees had prevailed in an action for wrongful death which resulted in a jury verdict and judgment in the amount of $392,300.00.

Although the Order Approving Additional Costs allowed six cost items, in a sum of $6,510.92, ¹ appellant here challenges only three of those items:

(1) The allowance of $588.00 for witness fees, transportation, and subsistence for one of appellees' witnesses who was flown in from California but was never called to testify at trial.

(2) The allowance of $412.50 for translation costs.

(3) The allowance of a special fee of $2,425.00 for appellees' expert witness on Vietnamese law. ²

For the reasons set forth in this opinion, we affirm the judgment of the District Court awarding costs for the first two items noted above; however, we reverse and remand that portion of the District Court's judgment relating to costs allowed for fees paid to the "expert witness."

I. BACKGROUND

The original suit in this case was an action for wrongful death brought by Lam Quy and her children for damages attributable to the death of To Huu, plaintiff's husband and father. To Huu was fatally injured in an airline crash, occurring in Can Tho, South Vietnam, on March 17, 1971, while a passenger on an aircraft owned and operated by defendant, Air America. The suit against Air America was filed on March 14, 1974, and the case was subsequently tried before a jury and the Honorable June L. Green in December of 1978. After approximately seven days of trial, the jury returned a verdict in favor of each plaintiff in the aggregate amount of $392,000.00. Judgment in this amount was entered on December 21, 1978. ³

On June 5, 1980, appellees, by their counsel, submitted a Bill of Costs in the amount of $8,707.15. App. 3a. On July 1, 1980, the Clerk of the United States District Court for the District of Columbia allowed only $917.30 in costs, disallowing, among other items, (1) the claim for airfare for William Stanley (plaintiffs' witness from California who appeared but did not testify at trial), (2) the claim for translation expenses, and (3) the claim for "fees of expert witnesses." App. 3a-4a. On July 14, 1980, appellees submitted a Motion for Costs, requesting Judge Green "to review the action of the Clerk ... in granting only a part of the bill of costs submitted in this action." App. 68a. Following the submission of written arguments by each side, Judge Green issued the Order Approving Additional Costs, dated September 23, 1980 and filed September 25, 1980. App. 110a-111a. See note 1 supra.

In order to make clear the bases of appellees' claim for costs, the facts surrounding each of the three disputed cost items are outlined below.

1. Costs Awarded for a Plaintiffs' Witness Who Appeared but Did Not Testify At Trial

Shortly after the air crash, William Stanley, who was then serving with the United States Army, investigated the cause of the accident. During the course of his investigations, Mr. Stanley also prepared a version of the control tower tape transcript recorded at the site of the crash. During pretrial discovery, the deposition of Mr. Stanley was taken in California. The parties later stipulated that the deposition testimony given by Mr. Stanley would be admissible at trial.

Appellees' counsel, thinking that Mr. Stanley's live testimony might be necessary to prove important facts not covered by other witnesses, ⁴ flew Mr. Stanley from California to Washington, D. C. to testify at trial. Mr. Stanley stayed overnight in Washington, D. C. for two days. As it turned out, however, plaintiffs' counsel determined during trial that their proofs were adequate without the testimony of Mr. Stanley. Therefore, plaintiffs' counsel decided against calling Mr. Stanley as a witness.

2. Costs Awarded for Translation Expenses

About four years after commencement of the wrongful death action in District Court appellant's counsel went to Saigon, Vietnam and took the depositions of plaintiff Lam Quy and of Luu Quan Kiet, the employer of plaintiffs' decedent. Both Lam Quy and the employer testified in Vietnamese and an interpreter sequentially translated their testimony into English. Because no suitable court reporters were available in Vietnam, the testimony in Vietnamese and the English translations were recorded on a cassette tape. Appellant's counsel subsequently provided appellees' counsel with a copy of the tape and a transcript of the English translation.

When appellees' counsel reviewed the English transcript, they discovered several blank and garbled portions. Appellees' counsel thereafter retained the original translator, who was then living in the same city as appellees' counsel, to review the tape, fill in gaps in the transcript and correct the unintelligible sentences. Appellees' counsel read the corrected transcript into evidence at the trial.

3. Costs Awarded for the Special Fee Paid to Nguyen Quoc Dai, Plaintiffs' "Expert Witness" On Vietnamese Law ⁵

At a hearing before Judge Green on October 24, 1978, the parties' counsel were advised that a pretrial conference would be held on November 20, 1978, and that trial would commence on December 12, 1978. Trial Transcript ("Tr.") 10 (October 24, 1978). Counsel were also advised to submit "pretrial statements" before trial. Id.

Subsequently, appellees submitted a Pretrial Statement, dated November 17, 1978. "Plaintiffs' Pretrial Statement," reprinted in Supplemental Record on Appeal. Although the Plaintiffs' Pretrial Statement included a "Witness List," plaintiffs did not designate their expert on Vietnamese law as one of the witnesses who might be called to testify at trial. Id. at 15-16. Rather, Plaintiffs' Pretrial Statement simply noted that:

The law of Vietnam applies to issues of liability and damages in this action. The court is referred to the accompanying affidavit of Nguyen Quoc Dai, an expert on the law of Vietnam, for a discussion of the relevant Vietnamese legal authority on the issues of liability and damages.

Plaintiffs respectfully request a ruling by the court on the Vietnamese law before trial so that appropriate jury instructions can be formulated two days before trial as ordered by the court in the order dated November 9, 1978.

Id. at 16. ⁶

Prior to the commencement of trial, Judge Green had two pretrial conferences with appellant's and appellees' counsel. These pretrial conferences apparently occurred on November 20, 1978 and November 27, 1978; however, there is no official record of any formal action taken by the District Court at either of the pretrial conferences. ⁷

During the morning of December 12, 1978, just before the start of the jury trial, Judge Green held a hearing to allow the parties to present evidence and arguments on Vietnamese law. The record indicates that appellees' witness, Nguyen Quoc Dai, testified as a concededly qualified "legal expert" on Vietnamese law. Tr. 5-55 (December 12, 1978). At the conclusion of the testimony of Nguyen Quoc Dai, the following exchange took place between Judge Green and counsel:

MR. LANKENAU (Plaintiffs' counsel): Your Honor, I rest in my proof of the law of Vietnam on the testimony of this witness and the exhibits introduced during the course of his testimony.

MR. WHALEN (Defendant's counsel): Your Honor?

THE COURT: Mr. Whalen?

MR. WHALEN: I am resting on the affidavit which has been submitted to the Court, Mr. Phu.

And my position is that Your Honor can take into consideration, in your determination of foreign law, exhibits, affidavits, and live witnesses, and I am relying on his affidavit as well as my cross-examination of the plaintiffs' expert.

THE COURT: Well, there were a number of things in your man's affidavit that the Court had many questions about and without his presence here to be able to lay those to rest, I would not be able to give it very much consideration.

Id. at 55.

There is nothing in the record to indicate that Judge Green "ordered" or otherwise required the testimony of Nguyen Quoc Dai, as is suggested by appellees on this appeal. Rather, it appears that the Trial Judge simply conducted a brief pretrial hearing to receive evidence and arguments on Vietnamese law. At this hearing, plaintiffs chose to present an expert witness, while defendant chose to rely on the cross-examination of plaintiffs' expert and the affidavits previously submitted by the parties. ⁸

II. ALLOWANCE OF COSTS FOR A WITNESS WHO APPEARS BUT IS NOT CALLED TO TESTIFY AT TRIAL

Appellant contends that "it was improper for the court below to award attendance fees for Mr. Stanley, who did not testify at trial and whose deposition was admissible at trial." Appellant's Brief at 11. On the record in this case, we reject this contention. Instead, we find that the action of the District Court was plainly within the compass of 28 U.S.C. § 1821 (Supp. II 1978); therefore, we affirm the judgment of Judge Green awarding costs for the fees, travel and subsistence of Mr. Stanley.

The statutory...