365 So.3d 760
La. Ct. App.2021Background
- Lt. Inga Barré‑Williams underwent thoracic spine surgery in 2014 at the wrong level (T7‑8 instead of T8‑9); a corrective surgery followed. The family sued Dr. Marcus Ware and Ochsner Clinic Foundation for malpractice. A jury awarded $326,000 (general damages) + $19,000 (past medical) + $7,000 (husband’s consortium) = $352,000.
- Plaintiffs sought taxation of $111,128.05 in litigation costs; the trial court awarded $35,807.12 and denied or reduced many specific cost items. Plaintiffs appealed.
- Disputed cost categories included court filing/IT/courier fees, numerous expert witness fees (Drs. Castillon, Bartholomew, Higgins, Jones, Diethelm), deposition costs (many not admitted into evidence), and copying/exhibit/IT expenses.
- Governing law: La. C.C.P. art. 1920 (broad equitable power to award costs) and La. R.S. 13:4533 (lists clerk, sheriff, witness fees, depositions, copies of acts used at trial, and “all other costs allowed by the court”). Appellate review: abuse of discretion for costs; legal error reviewed de novo.
- Court of Appeal reversed in part and affirmed in part: it awarded additional taxable items (including certain expert travel and testimony fees, several depositions), corrected a math/amount error for Dr. Castillon’s preparation, taxed additional $19,203.15 (bringing total taxed costs to $55,010.27), and remanded for the trial court to determine which copy costs are compensable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recoverability of court/courier/IT fees | IT rental and courier fees were necessary to bring the case to trial and should be taxed | Only costs authorized by statute are taxable; courier/IT not listed | IT rental ($37.50) awarded as necessary; courier fees disallowed |
| Recoverability of Dr. Castillon fees (principal expert) | Full fees (including travel, MR panel prep, trial prep, per diems) are taxable; trial judge saw his in‑court work | Travel and panel fees not statutorily authorized or unreasonable | Travel and wire fees taxable; one per diem and 19 hrs prep taxed; corrected prep amount to $14,250; total Castillon taxable = $30,781.60 |
| Recoverability of Dr. Bartholomew fees (local neurosurgeon) | Fees for trial preparation and testimony are taxable; trial court observed his testimony | Some consultation fees are attorney‑related and not taxable | Trial court abused discretion in denying trial preparation/testimony fees; $4,500 awarded |
| Recoverability of Dr. Higgins fees (radiologist) | His radiology testimony was necessary and an agreed per‑day fee is taxable | Fees unsupported/documentation issues; some payments informal | Trial court abused discretion to deny all fees; remand limited to actual testimony—$5,000 awarded (one day) |
| Recoverability of Dr. Jones fees (physical therapist) | Full record‑review and testimony fees taxable | Insufficient proof of records‑review fee; testimony was brief | Trial court did not abuse discretion in awarding $500 for testimony; records‑review denied for lack of support |
| Recoverability of Dr. Diethelm deposition (consulted radiologist) | Deposition was used to refresh testimony and thus was necessary/costly | Only depositions admitted into evidence are taxable | Deposition cost taxable because expert relied on it during testimony; $1,185 awarded |
| Depositions not admitted into evidence generally | Many depositions (esp. of experts who testified) were necessary to trial and should be taxed | Succession of Franz / statute support taxing only depositions used/introduced at trial | Some non‑introduced expert depositions may be taxable in discretion (Butler), but trial court did not abusively deny most; reversals where deposition was effectively used (e.g., Oncale) and where deposition was admitted (Hartman) |
| Copy/exhibit/IT/other discretionary costs | Copies, exhibit costs, IT staffing and certain discretionary charges were necessary and taxable under "all other costs allowed by the court" | Trial court properly limited discretionary/consultation and nonstatutory charges | Trial court misstated statute, abused discretion by denying some items; remanded to identify which copy/exhibit costs are taxable; discretionary costs largely affirmed |
Key Cases Cited
- Certain St. Bernard Parish Gov't ex rel. Ponstein v. St. Bernard Parish Gov't, 130 So. 3d 56 (La. App. 4 Cir. 2013) (trial court may tax non‑enumerated costs that were necessary to bring the case to trial)
- Butler v. Louisiana Mut. Med. Ins. Co., 195 So. 3d 570 (La. App. 4 Cir. 2016) (costs necessary to bring a case to trial, including some depositions of experts who testified, can be taxed in discretion)
- Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., 197 So. 3d 797 (La. App. 4 Cir. 2016) (equitable power to allocate costs limited by positive law; courts examine multiple factors for expert fees)
- Arrington v. Galen‑Med, Inc., 839 So. 2d 429 (La. App. 3 Cir. 2003) (limits on travel expenses for out‑of‑state experts discussed)
- Buffman, Inc. v. Lafayette Ins. Co., 36 So. 3d 1004 (La. App. 4 Cir. 2010) (expert fees recoverable for work directly connected to trial; consultation purely for attorney preparation not taxable)
- Watters v. Dep't of Social Servs., 15 So. 3d 1128 (La. App. 4 Cir. 2009) (types of costs recoverable are narrowly defined by statute; depositions generally taxed when introduced at trial)
- Vela v. Plaquemines Parish Gov't, 811 So. 2d 1263 (La. App. 4 Cir. 2002) (courts may award discretionary costs under La. R.S. 13:4533)
- Covington v. McNeese State Univ., 118 So. 3d 343 (La. 2013) (appellate review standards for awards)
- Succession of Franz v. (Moody reconsideration), 139 So. 2d 216 (La. 1962) (depositions taxable as costs only if used at trial; clarified prior exception)
- Liquid Carbonic Corp. v. BASF Wyandotte Corp., 468 So. 2d 1225 (La. App. 4 Cir. 1985) (equity can justify travel/discovery costs in particular circumstances)