Waldman v. American Honda Motor Co., Inc.

• Decision Date: 10 August 1992
• Citation: 597 N.E.2d 404,413 Mass. 320
• Parties: David WALDMAN v. AMERICAN HONDA MOTOR CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 404

597 N.E.2d 404

413 Mass. 320

David WALDMAN v. AMERICAN HONDA MOTOR CO., INC.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued April 8, 1992.

Decided Aug. 10, 1992.

Wendy Sibbison, Greenfield, for plaintiff.

David H. Sempert, Cambridge, David W. McGough, Boston, with him, for defendant.

Daniel C. Crane, Cambridge, Jerry E. Benezra, Melrose, Edward E. Kelly & Christine A. Gardner, Boston, for Massachusetts Bar Ass'n, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

After trial by jury, the plaintiff, David Waldman, lost his product liability action against the defendant. The Appeals Court affirmed the judgment in an unpublished memorandum. See Waldman v. American Honda Motor Co., Inc., 27 Mass.App.Ct. 1415, 541 N.E.2d 586 (1989). Thereafter, the trial judge, after denying the plaintiff's request for a hearing, ordered him to pay the defendant $18,837.08 as costs. ¹ The plaintiff appealed. The Appeals Court affirmed. Waldman v. American Honda Motor Co., Inc., 31 Mass.App.Ct. 451, 579 N.E.2d 480 (1991). We allowed the plaintiff's application for further appellate review.

The judge awarded the costs pursuant to G.L. c. 261, § 1. The plaintiff argues that the judge erred in awarding expert witness fees in excess of the witness fees provided by G.L. c. 262, § 29, ² and in awarding deposition costs without finding that the deposition costs were "reasonably necessary." Mass.R.Civ.P. 54(e), as amended, 382 Mass. 829 (1980). The plaintiff also asserts that, because there were factual disputes as to the reasonable necessity of the deposition costs claimed by the defendant, see Mass.R.Civ.P. 54(e), the judge erred in ordering him to pay costs without affording him an opportunity to be heard, as he requested. We reverse the trial judge's order.

1. Expert Witness Fees.

A. The American rule in Massachusetts. "The usual rule in Massachusetts is that the litigant must bear his own expenses...." Linthicum v. Archambault, 379 Mass. 381, 389, 398 N.E.2d 482 (1979), citing Creed v. Apog, 377 Mass. 522, 525, 386 N.E.2d 1273 (1979). See Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 721, 369 N.E.2d 1018 (1977); Fuss v. Fuss (No. 1), 372 Mass. 64, 70, 368 N.E.2d 271 (1977). See also Bournewood Hosp., Inc. v. Massachusetts Comm'n Against Discrimination, 371 Mass. 303, 312-313, 358 N.E.2d 235 (1976); United Tool & Indus. Supply Co., Inc. v. Torrisi, 359 Mass. 197, 197-198, 268 N.E.2d 837 (1971); Commissioner of Ins. v. Massachusetts Accident Co., 318 Mass. 238, 241, 61 N.E.2d 137 (1945), citing Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 147 N.E. 878 (1925); Boynton v. Tarbell, 272 Mass. 142, 144, 172 N.E. 340 (1930); Abrams v. Scandrett, 138 F.2d 433, 436 (7th Cir.1943). This rule is more broadly known as the "American Rule." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975).

Certain taxable costs, however, are recoverable as a matter of course by successful litigants. G.L. c. 261, §§ 1 et seq. ³ Witness fees are included in taxable costs. See G.L. c. 261, §§ 8, 9, 11. See also Barber v. Parsons, 145 Mass. 203, 13 N.E. 491 (1887); Cook v. Holmes, 1 Mass. 295 (1805). In taxing costs, courts do not seek to compensate litigants fully for the cost of litigation. "As a general rule taxable costs are considered full compensation to a prevailing party for the expense of conducting litigation even though such costs are only nominal and wholly inadequate." MacNeil Bros. v. Cambridge Sav. Bank, 334 Mass. 360, 363, 135 N.E.2d 652 (1956), citing Malloy v. Carroll, 287 Mass. 376, 384, 191 N.E. 661 (1934); Goldberg v. Curhan, 332 Mass. 310, 312, 124 N.E.2d 926 (1955). The amount of taxable witness fees is governed by G.L. c. 262, § 29. ⁴ We conclude that this limitation applies to all witnesses, including experts. ⁵ The trial judge therefore erred in awarding expert witness fees as costs in excess of the amounts permitted under G.L. c. 262, § 29. ⁶

A successful litigant may recover the actual, reasonable costs of the action from an adversary only if "a statute permits awards of costs ... or ... a valid contract or stipulation provides for costs, or ... rules concerning damages permit recovery of costs." ⁷ (Citation omitted.) Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 721-722, 369 N.E.2d 1018 (1977). General Laws c. 261, § 1, is not such a statute. Since our 1945 decision in Commissioner of Ins. v. Massachusetts Accident Co., supra, in which we first referred to the American rule as the usual rule in Massachusetts, the Legislature has amended the relevant portions of G.L. c. 261 seven times, ⁸ and G.L. c. 262, § 29, five times. ⁹ "The Legislature must be presumed to have known of [our previous] decision[s]" affirming the vitality of the American rule. Crown Shade & Screen Co. v. Karlburg, 332 Mass. 229, 231, 124 N.E.2d 238 (1955). Because nothing in any amendment suggests that the Legislature intended that G.L. c. 261, § 1, reverse the American rule, we assume the Legislature did not intend to do so. See Crown Shade & Screen Co. v. Karlburg, supra at 231, 124 N.E.2d 238. See also District Attorney for the N. Dist. v. Lowell Div. of the Dist. Court Dep't, 402 Mass. 511, 513-514, 524 N.E.2d 81 (1988), citing MacQuarrie v. Balch, 362 Mass. 151, 152, 285 N.E.2d 103 (1972). When the Legislature determines that actual, reasonable costs, as distinguished from statutory costs, are to be shifted from the losing party to the prevailing party, it enacts an explicit statute. See, e.g., G.L. c. 93A and G.L. c. 231, § 6F.

The defendant's reliance on cases decided under G.L. c. 93A is misplaced. General Laws c. 93A provides express statutory authority to award expert witness fees to a successful plaintiff. See Maillet v. ATF-Davidson Co., Inc., 407 Mass. 185, 552 N.E.2d 95 (1990); Linthicum v. Archambault, supra. In Linthicum v. Archambault, supra, 379 Mass. at 389, 398 N.E.2d 482, we said that "[c.] 93A is a statutory exception to th[e usual rule]." We said that "reasonable expert witness fees should normally be recoverable in a c. 93A case in order to vindicate the policies of the act " (emphasis added). Maillet v. ATF-Davidson Co., Inc., supra, 407 Mass. at 194, 552 N.E.2d 95, quoting Linthicum, supra. The fee-shifting mandate of G.L. c. 93A is precisely the type of specific statutory exception to the American rule that is absent in the present case. ¹⁰

The defendant's reliance on Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 555, 506 N.E.2d 95 (1987), also is misplaced. In Goulet, we said: "Contrary to [the defendant's] assertion, there is no indication that th[e award of expert witness fees] was 'all or in large part apparently generated in connection with defendant's deposition of the [expert] witness.' " Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 555, 506 N.E.2d 95 (1987). The issue whether G.L. c. 262, § 29, limits the amount of expert witness fees that may be awarded under Mass.R.Civ.P. 54(d) and Mass.R.A.P. 26(c) was not before us, and we therefore did not resolve it. The other cases cited by the defendant similarly do not support the proposition that, in the absence of statutory or contractual authorization or a finding of frivolousness, see G.L. c. 231, § 6F, expert witness fees may be taxed in excess of the amounts provided in G.L. c. 262, § 29. ¹¹ B. Result under Federal practice. Practice under the corresponding Federal statutory scheme and rules of procedure yields the same result. The relevant language of the Federal rule, Fed.R.Civ.P. 54(d), is identical to the language of Mass.R.Civ.P. 54(d), as amended, 382 Mass. 821 (1980). Both rules provide that, "[e]xcept when express provision therefor is made either in a statute ... or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs." Where this court has "adopted comprehensive rules of civil procedure in substantially the same form as the earlier Federal Rules of Civil Procedure, the adjudged construction theretofore given to the Federal rules is to be given to our rules, absent compelling reasons to the contrary or significant differences in content." Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975). Cf. Creed v. Apog, 377 Mass. 522, 525, 386 N.E.2d 1273 (1979) ("Such costs [incurred by defendant in purchasing letter of credit required as collateral security for a surety bond required to dissolve an attachment] have been awarded to prevailing parties by long practice in the Federal courts").

The plaintiff argues persuasively that Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439, 107 S.Ct. 2494, 2496, 96 L.Ed.2d 385 (1987), supports his position. In that case, the United States Supreme Court "h[e]ld that when a prevailing party seeks reimbursement for fees paid to its own expert witnesses [pursuant to Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920], a [F]ederal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary." ¹² The Supreme Court in Crawford Fitting Co. noted that the predecessor statute of 28 U.S.C. § 1920 provided that "the following and no other compensation shall be taxed [as costs] and allowed" (emphasis added). Crawford Fitting Co., supra at 440, 107 S.Ct. at 2496, quoting Act of Feb. 26, 1853, 10 Stat. 161. The Supreme Court also explained that, although the language of exclusivity underscored above has been deleted from § 1920, the omission suggests no "apparent intent to change the controlling rules." Crawford Fitting Co. v. J.T. Gibbons, Inc., supra at 440, 107 S.Ct. at 2496, quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 250, 95 S.Ct. 1612, 1618, 44 L.Ed.2d 141 (1975). The defendant argues that the lingering effect of the language omitted from § 1920...