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Kinser v. CBS Corporation

United States District Court, C.D. Illinois

April 16, 2014

LARRY A. KINSER, et al., Plaintiffs,


HAROLD A BAKER, District Judge.

This case is once more before the court for consideration of the motion for a bill of costs, as supplemented, by defendant CBS/Westinghouse. The court has considered the motion and its supplement, together with the plaintiffs' voluminous submissions in opposition, and the defendant's reply. For the following reasons, the motion for a bill of costs as supplemented is allowed in part, and the plaintiffs' objections are overruled except as ruled otherwise in this order.


Larry Kinser worked for many years as a pipe fitter assigned to 100 or more job sites during his career. He began to smoke cigarettes as a teenager and smoked for many years. He was exposed to significant secondhand smoke both at home and at work. In 2000, Kinser was diagnosed with lung cancer and the upper lobe of his left lung was removed. At the time of trial, he was 79 years old, and had not had a recurrence of his cancer.

The plaintiffs sought to prove that Kinser's exposure to asbestos when he worked for four or five months in 1974 at the Zion, Illinois, powerhouse was a proximate cause of his lung condition. The defendant presented evidence that Kinser's lung condition was not proximately caused by exposure to asbestos from its turbines at the Zion powerhouse because its turbines were not insulated with asbestos. The defendant also presented evidence that Larry Kinser's lung cancer was not proximately caused by exposure to asbestos.

Jury selection and jury trial were scheduled to begin on Monday, January 6, 2014, at 9:00 a.m. However, severe weather and other unexpected problems delayed jury selection and jury trial until January 8, 2014. In addition, severe weather posed significant travel problems and delays for witnesses and experts, many of whom were from out of state. In addition, the court was concerned about the jurors' travel to and from the courthouse during inclement weather and did not keep to a 9-to-5 schedule. The plaintiffs presented their first witness on January 9, 2014. As always, the defendant's scheduling of its witnesses depends on the progression of the plaintiffs' case. As a result, there were a number of complications impacting the scheduling of all of the witnesses. Each side had a remuda of experts on its witness list, all of whom traveled a significant distance in severe weather.

Legal standards

Rule 54(d) of the Federal Rules of Civil Procedure provides that "costs - other than attorney's fees - should be allowed to the prevailing party." Fed.R.Civ.P. 54(d); see also CDIL-LR 54.1. The costs recoverable under Rule 54(d) include: (1) fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcripts necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; and (5) docket fees. 28 U.S.C. ยง 1920; see also Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d 926, 945 (7th Cir. 1997) (setting forth categories of allowable costs). The defendant seeks clerk's fees ($226.00); transcription fees ($12, 558.35); printing ($1, 223.30); witness fees ($5, 834.78); and exemplification and copying costs ($28, 787.64). The total is $48, 630.17.

The law presumes that the prevailing party in litigation "will recover costs, and the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005); see also Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006). "The presumption in favor of awarding costs to the prevailing party is difficult to overcome, and the district court's discretion is narrowly confined - the court must award costs unless it states good reason for denying them." Weeks, 126 F.3d at 945. The procedure for reviewing a bill of costs is straightforward; the district court "simply needs to determine that expenses are allowable cost items, and that the amounts are reasonable and necessary." Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995).

The plaintiffs object to the amount sought for transcription fees, printing, witness fees, and exemplification and copying costs. There is no objection to the $226 attorney admission fee of Paula Burlison, Esq.

Transcription fees

The plaintiffs object to the transcription fees sought for the following reasons: the defendant did not need the full trial transcript and the cost of daily transcripts was unreasonable; the defendant seeks reimbursement of deposition costs to which it is not entitled; and the cost of video depositions of Arthur Kleinrath should be prorated because he testified about a number of Commonwealth Edison facilities, only one of which was relevant to this case.

First, the court finds that daily trial transcripts were necessary, considering the length of the trial and the complex testimony of most of the expert witnesses. The defendant paid a per-page rate of $6.05 for daily transcripts, $4.85 for expedited transcripts, and $3.65 for the remaining pages, totaling $7, 920.85. The plaintiffs contend that the defendant could have asked for far fewer pages at a much lower cost, not to exceed $500. They assert that only three or four short excerpts were quoted at trial, and only a handful of pages were used to prepare post-trial motions.

In this case, the plaintiffs began their case in chief with highly complex expert testimony. The defendant's use of daily transcripts to prepare adequately for cross-examination and its own experts' testimony was reasonable and necessary. Had this trial been shorter or less complex, the court would agree that a more selective approach to ordering trial transcripts could have been appropriate. However, the ...

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