234 F. Supp. 290 | W.D. La. | 1964
RULING ON OBJECTIONS TO BILL OF COSTS
After judgment was rendered in favor of defendant in this patent infringement action,
Plaintiff’s first objection is as to the allowance of $2,797.46 for expert witness fees, mileage, and subsistence for defendant’s expert, Fishleigh. It often has been held that fees of expert witnesses called by a party in his own behalf are not taxable as costs in excess of the statutory witness fees. Henkel v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386 (1932); Green v. American Tobacco Company, 304 F.2d 70 (5 Cir. 1962) ; Euler v. Waller, 295 F.2d 765 (10 Cir. 1961). Provision for witness fees, mileage, and subsistence is found at 28 U.S.C.A. § 1821, and both parties agree that this statute authorizes an award to defendant for Fishleigh’s testimony in the sum of $76.00. No more than that amount may be taxed as an expert’s fee, or for his expenses.
Schedule B of defendant’s bill of costs contains items in the amount of $87.50 for the expense of producing certain models filed in evidence as Exhibits 1, 18, and 29. Plaintiff contends there is no authority, statutory or otherwise, for the allowance of such items as costs. Courts are authorized by 28 U.S.C.A. § 1920(4) to tax as costs “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.” However, the clear majority of reported decisions have held that costs of providing such models does not fall within that provision.
We find a division of authority regarding taxation of expenses for preparation of charts used as evidence in patent cases. Some courts have held that such expenses are not taxable costs within the purview of 28 U.S.C.A. § 1920.
It is a well accepted rule that under F.R.Civ.P. 54(d) taxation of costs rests in the sound discretion of the trial court.
In Schedule B of the bill of costs defendant claims $107.15 for copies of patents introduced as defendant’s Exhibit 20 and $7.00 for extra copies of the Scaramucci and Horowitz patents made at the request of the court. These clearly are “copies of papers necessarily obtained for use in the case” within the meaning of 28 U.S.C.A. § 1920(4), and defendant is entitled to have such amounts taxed as costs.
Moreover, no objection has been made to taxation of witness fees for Horowitz and Chapman in the sum of $16.00. The docket fee of $20.00 also is appropriately taxed. 28 U.S.C.A. § 1920(5).
To recapitulate, the amounts properly to be taxed as costs are as follows;
Witness fee for Fishleigh $ 76.00
Witness fees for Horowitz and Chapman ........ 16.00
Copies of Scaramucci and Horowitz patents ..... 7.00
Copies of other patents in Exhibit 20 ........... 107.15
Docket Fee ............ 20.00
Total .......... $ 226.15
. 228 F.Supp. 680 (W.D.La.1964).
. See Specialty Equipment & Machinery Corp. v. Zell Motor Car Co., 193 F.2d 515 (4 Cir. 1952); Swan Carburetor Co. v. Chrysler Corp., 149 F.2d 476 (6 Cir. 1945); Reinharts v. Caterpillar Tractor
. Prashker v. Beech Aircraft Corp., supra; Criner v. Micro-Westco, 3 F.R.D. 495 (S.D.Iowa 1944); Gotz v. Universal Products Co., 3 F.R.D. 153 (D.C.Del. 1943); B. B. Chemical Co. v. Cataract Chemical Co., 2 F.R.D. 159 (W.D.N.Y. 1941).
. Swan Carburetor Co. v. Chrysler Corp., supra; W. F. & John Barnes Co. v. International Harvester Co., 145 F.2d 915 (7 Cir. 1945); Reinharts v. Caterpillar Tractor Co., supra; Hope Basket Co. v. Product Advancement Corp., 104 F. Supp. 444 (W.D.Mieh. 1952); Copeman Laboratories Co. v. Nox-ge Division of Borg-Warner Corp., 89 F.Supp. 161 (E.D.Mich.1950).
. Euler v. Waller, supra; Emerson v. National Cylinder Gas Co., 251 F.2d 152 (1 Cir. 1958); Cold Metal Process Co. v. Republic Steel Corp., 233 F.2d 828 (6 Cir. 1956).