Upton v. Henderer, No. 07-CV-456.
| Decision Date | 09 April 2009 |
| Docket Number | No. 07-CV-966.,No. 07-CV-456. |
| Citation | 969 A.2d 252 |
| Parties | Richard UPTON, Appellant/Cross-Appellee, v. David Rodman HENDERER, Appellee/Cross-Appellant. |
| Court | D.C. Court of Appeals |
Peter N. Mann, Washington, for appellant/cross-appellee.
Timothy E. Howie, Beltsville, MD, for appellee/cross-appellant.
Before RUIZ and FISHER, Associate Judges, and FARRELL, Senior Judge.
In this lawsuit for damages resulting from an automobile accident, plaintiff-appellant Upton challenges the pretrial order of the trial judge excluding evidence of claimed lost wages, and seeks a new trial after the jury denied him damages for personal injury.1 Defendant (and cross-appellant) Henderer in turn contests the judge's refusal to award him expert witness fees as costs under Superior Court Rule of Civil Procedure 68. We affirm in all respects, publishing this opinion only to explain our agreement with the trial judge that witness fees beyond those provided in 28 U.S.C. § 1821 may not be awarded under Rule 68.
Upton and Henderer were involved in a car accident on Connecticut Avenue, N.W. After Upton sued for negligence, Henderer offered him a judgment of $10,000 under Rule 68, which Upton rejected. At trial Henderer admitted negligence and the only issues put to the jury were whether his conduct had proximately caused injuries to Upton, and if so, the amount of damages to be awarded. Since the parties stipulated to $2,000 worth of damage to Upton's car, the judge directed a verdict for Upton to that extent. The judge further treated as unopposed, and granted, Henderer's in limine motion to exclude evidence of purported wage losses by Upton. Following a trial in which competing medical experts opined on whether the accident had aggravated Upton's pre-existing back malady, the jury found that Upton had not met his burden of proof on causation and awarded him nothing. Henderer then moved for costs including fees paid to his expert witnesses, in light of his earlier offer of judgment exceeding Upton's recovery. The judge denied him witness fees except to the extent provided by 28 U.S.C. § 1821(b), relying chiefly on this court's decision in Talley v. Varma, 689 A.2d 547 (D.C.1997), which had imposed the same limit on witness fees sought as costs under Super. Ct. R. Civ. P. 54. Henderer thus received witness fees of $40 per day and travel expenses for each of his expert witnesses.
Upton's twin challenges to the exclusion of wage-loss evidence and the jury's refusal to award him damages may be dealt with briefly, beginning with the latter. When, as here, a party seeks a new trial because the damage award is against the weight of the evidence, we will reverse only (a) if the amount—or absence —of an award "evidences prejudice, passion, or partiality on the part of the jury[,]" (b) "where the verdict appears to be an oversight [or] mistake, or [to rest on] consideration of an improper element," or (c) where "the award is contrary to all reason." Barron v. District of Columbia, 494 A.2d 663, 665 (D.C.1985) (quoting Romer v. District of Columbia, 449 A.2d 1097, 1099 (D.C.1982)). Upton, however, confronts a threshold hurdle because he did not move for a new trial challenging the jury's verdict. "This court will not review a verdict for inadequate or excessive damages unless such arguments were made to the trial court in post-trial motions." Oliver v. Mustafa, 929 A.2d 873, 879 (D.C.2007). In Keener v. Karr, 528 A.2d 1236 (D.C.1987), we explained why:
[T]he trial judge has the chief responsibility for passing on the question as to whether a new trial is to be granted on the ground of excessive or inadequate damages, subject to only the most limited review.... The trial judge must, as a result, be given an opportunity to exercise his discretion.
Id. at 1237 (). Thus, we would only speculate by asking whether the judge abused discretion Upton never invoked in not granting a new trial here. Moreover, the weighty expert medical testimony Henderer presented disputing any causal link between the car accident and personal injury to Upton, even by way of aggravation, makes it impossible for us to say that the verdict was "contrary to all reason." Barron, supra, 494 A.2d at 665 (quoting Romer, supra, 449 A.2d at 1099).2
Because the jury's finding of no causation is unassailable on appeal, we do not reach Upton's challenge to the exclusion of evidence of lost wages. At oral argument, he suggested that the jury might have been more receptive to his evidence of causation had it learned that he earned no wages in the aftermath of the accident, but we do not see how this can be so. As he concedes, the jury heard—and implicitly discounted—the evidence he provided that he had worked strenuously to build his security and safe-repair business in the years just before the accident (though taking no salary), but was sidelined entirely and could earn nothing after the accident. Merely learning the price-tag Upton put on his post-accident inability to work could not reasonably have affected the jury's unwillingness to find the necessary causal connection.3
On this record, in sum, there is no reason to disturb the jury's verdict and the antecedent ruling on lost wages.
In his cross-appeal, Henderer urges us to hold that compensation for the time and work of expert witnesses is an awardable "cost" under Super. Ct. R. Civ. P. 68.4 He maintains that, if all a defendant who has offered judgment may recover in witness fees is the nominal amount set forth in 28 U.S.C. § 1821(b) (), then Rule 68 is effectively a dead letter, contrary to its avowed purpose "to penalize prevailing plaintiffs who had rejected reasonable settlement offers." Nichols v. First Union Nat'l Bank, 905 A.2d 268, 275 (D.C.2006) (quoting Delta Air Lines, Inc. v. August, 450 U.S. 346, 358, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) (italics deleted)). For the reasons that follow, we agree with the trial judge's rejection of that position.
Although Rule 68 does not define "costs," we have recognized that "[c]osts, as used to refer to those items a prevailing party is entitled to recover as a matter of course, ... mean something less than a litigant's total expenses in connection with the suit." Robinson v. Howard Univ., 455 A.2d 1363, 1368 (D.C.1983). Specifically, the court in Talley v. Varma, supra, and Harris v. Sears Roebuck & Co., 695 A.2d 108 (D.C.1997), held that the federal statutory limits in 28 U.S.C. §§ 1821 and 1920 limit the expert witness fees awardable to a prevailing party under Super. Ct. R. Civ. P. 54 and 54-I. We quote the analysis in Talley because of its relevance here:
[This court] correctly looks to the federal courts for guidance on this issue[, for] ... federal cases interpreting Fed. R.Civ.P. 54 are persuasive when we interpret Super. Ct. Civ. R. 54. In addition, various provisions of the D.C.Code dealing with witnesses incorporate 28 U.S.C. §§ 1821 and 1920. See D.C.Code §§ 11-743, 11-946, 15-714(b).... In 1987, the Supreme Court held in Crawford Fitting Co. [v. J.T. Gibbons, Inc.], 482 U.S. [437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987)], that 28 U.S.C. § 1821(b) limits a court's authority to shift witness fees, as provided in 28 U.S.C. [§] 1920(3), to the statutory amount in the absence of express legislation to the contrary. ... [T]he federal statutory limit [thus] applies [as well] to expert witness fees provided for under Super. Ct. Civ. R. 54 and 54-I.
Talley, 689 A.2d at 557 (); see also Harris, supra, 695 A.2d at 111.5
The issue before us, then, is whether to extend this analysis to Rule 68. If we do so, and there being no statutory basis for a different result, Henderer could be awarded only those witness fees the defendant was entitled to in Talley. We are persuaded that "costs" should mean the same thing under both rules.
First, in Delta Air Lines, supra, the Supreme Court recognized an intrinsic link between Federal Rules 68 and 54, explaining that the purpose of Rule 68 is to make the plaintiff weigh the risk of losing the benefit of recovering his costs under Rule 54(d):
Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made. If a plaintiff rejects a Rule 68 settlement offer, he will lose some of the benefits of victory if his recovery is less than the offer. Because costs are usually assessed against the losing party, liability for costs is a normal incident of defeat.
450 U.S. at 352, 101 S.Ct. 1146. Nothing the Court said there implied that costs beyond those authorized by Rule 54(d) must be awardable to make Rule 68's "inducement to settle" meaningful.
Further, federal cases do not support construing Rule 68 more generously than Rule 54(d) in regard to costs such as witness fees. See Davis v. Abbuhl, 461 A.2d 473, 476 n. 6 (D.C.1983) () (citing Vale Properties, Ltd. v. Canterbury Tales, Inc., 431 A.2d 11, 13 n. 3 (D.C. 1981)).6 Rather, after the Crawford Fitting decision, most federal courts have refused to award costs under Rule 68 that are not authorized by 28 U.S.C. §§ 1821 and 1920. See, e.g., Sea Coast Foods v. Lu-Mar Lobster & Shrimp, Inc., 260 F.3d 1054, 1060 (9th Cir.2001) (...
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...this title [28 USCS § 1828]. 29.Talley, 689 A.2d at 555 (citing Crawford, 482 U.S. at 442–45, 107 S.Ct. 2494);see also Upton v. Henderer, 969 A.2d 252, 255 (D.C.2009). 30. We note that we have ruled § 1920 was “necessarily incorporated” into our law by the District of Columbia Court Reorgan......