Keener v. Buehrer
2017 Ohio 7749
Ohio Ct. App.2017Background
- Darrell Keener appealed a workers’ compensation denial; following a jury verdict establishing his right to participate for a left inguinal hernia, he moved for reimbursement of litigation expenses and attorney fees under R.C. 4123.512.
- Keener sought $3,246.82 in expenses (including $205 for a videographer for his expert Dr. deCaestecker and $203 for a certified copy of defense expert Dr. Vogelstein’s deposition) and $4,200 in attorney fees.
- Northmont City School District did not contest the attorney fees but objected to reimbursing both videographic and stenographic costs for the same deposition and to paying for certified copies of depositions when originals had been filed.
- The trial court awarded fees and most expenses but denied reimbursement for the $205 videographic charge and the $203 certified copy of Vogelstein’s transcript, reasoning a claimant cannot recover both stenographic and videographic costs for the same physician deposition and that a copy of a filed defense deposition was unnecessary.
- On appeal, this Court reversed the denial of the videographer charge (ordering the videographic expense awarded) and affirmed the denial of the certified-copy expense for Vogelstein’s deposition as unnecessary and unreasonable given the filed transcript and lower-cost certified-copy options.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether videographic costs for plaintiff’s expert deposition are recoverable under R.C. 4123.512(F) even when stenographic costs also exist | Keener: Cave and later cases allow reasonable videotaped-deposition expenses as "costs of any legal proceedings," so both forms can be reimbursed when necessary for trial | Northmont: A claimant may recover stenographic or videographic costs but not both; reimbursing both improperly burdens the employer/bureau | Videographic cost ($205) reversed — recoverable as a reasonable litigation cost under R.C. 4123.512(F) consistent with Cave and liberal construction principles |
| Whether certified-copy cost for defense expert’s deposition is taxable to the employer when the original transcript was filed | Keener: Certified copies were necessary for trial preparation and had a direct relation to his appeal; electronic access is not assured for parties | Northmont: Transcript was filed and available via clerk; paying for a copy was mere convenience and unnecessary | Denied — cost ($203) affirmed as not necessary or reasonable; cheaper certified copies from clerk were available |
| Standard for reimbursable costs under R.C. 4123.512(F) beyond deposition expenses | Keener: Broad interpretation — owners of routine litigation costs (copies, travel, postage, parking) that directly relate to the appeal are recoverable | Northmont: Many routine law-practice overhead items are not recoverable | Court adopts three-part test (category traditionally charged to clients; direct relation to appeal; reasonableness) and applies liberal construction to allow many reasonable litigation costs |
| Whether local rules requiring filed transcripts force dual (stenographic + videographic) costs to be reimbursed | Keener: Local rule requiring written transcript with video makes dual costs reasonable/necessary | Northmont: Cave and George interpreted to disallow dual recovery in many circumstances | Court finds videographic cost recoverable despite prior cases limiting dual recovery, emphasizing Cave and liberal construction; outcome depends on necessity and reasonableness in context |
Key Cases Cited
- State ex rel. Williams v. Colasurd, 71 Ohio St.3d 642 (1995) (video vs. stenographic deposition costs: former rule limiting dual recovery and holding costs not synonymous with expenses)
- Cave v. Conrad, 94 Ohio St.3d 299 (2002) (holding reasonable videotaped deposition expenses may be taxed as costs under R.C. 4123.512(F))
- Kilgore v. Chrysler Corp., 92 Ohio St.3d 184 (2001) (R.C. 4123.512(F) intended to prevent a successful claimant’s recovery from being dissipated by reasonable litigation expenses)
- Moore v. Gen. Motors Corp., 18 Ohio St.3d 259 (1985) (expert witness fees for deposition preparation and testimony are recoverable under predecessor statute)
- Akers v. Serv-A-Portion, Inc., 31 Ohio St.3d 78 (1987) (stenographic and reproduction deposition costs borne by surplus fund and reimbursed if claimant prevails)
- Schuller v. United States Steel Corp., 103 Ohio St.3d 157 (2004) (expert witness fee for live in-court testimony is reimbursable under R.C. 4123.512(F))
- George v. Administrator, Ohio Bur. of Workers' Comp., 120 Ohio App.3d 106 (2d Dist. 1997) (construing Colasurd to limit recovery of both stenographic and videographic costs for the same deposition)