United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON MISCELLANEOUS
GAIL DEIN UNITED STATES MAGISTRATE JUDGE.
October 26, 2010, American Airlines flight 1640 experienced a
rapid decompression while on route from Miami to Boston. The
aircraft returned to Miami and the passengers were placed on
a second aircraft to resume their journey to Boston. The
plaintiff, a passenger on the flight, subsequently filed suit
against The Boeing Company (“Boeing”), the
manufacturer of the plane and the defendant in the instant
case. Boeing agreed to be held liable for any proximately
nine day trial on the issue of damages, the jury returned a
verdict on April 12, 2018, finding that the plaintiff had
suffered $2.2 million in damages, but that she had failed to
mitigate $726, 000 of those damages. (See Docket No.
348). On April 19, 2018, this Court entered judgment for the
plaintiff, which included prejudgment interest, for a total
judgment of $2, 271, 651.60. (See Docket No. 349).
before the court are the following post-trial motions that
have been filed by the parties: (1) plaintiff's
“Bill of Costs” (Docket No. 369) and
defendant's “Motion for Disallowance and Objections
to Plaintiff's Bill of Costs” (Docket No. 376); (2)
defendant's “Motion to Compel Resolution of
Outstanding Expert Deposition Fee Issues” (Docket No.
400); (3) plaintiff's “Motion to Alter or Amend
Judgment” (Docket No. 383); and (4) defendant's
“Motion for Stay of Execution of Judgment and Waiver of
Bond Requirement” (Docket No. 353). Each motion will be
addressed in turn. Boeing's motion for a new trial or
remittitur under Fed.R.Civ.P. 59 and 50(b) (Docket No. 380)
is addressed in a separate opinion.
Plaintiff's Bill of Costs and Defendant's
the entry of judgment, the plaintiff filed a bill of costs,
seeking to tax the defendant for costs incurred by the
plaintiff, pursuant to Fed.R.Civ.P. 54(d). (See
Docket No. 369). The defendant filed a “Motion for
Disallowance and Objections to Plaintiff's Bill of Costs,
” objecting to fees for printed or electronically
recorded transcripts and fees for witnesses.,  (See Docket No.
376). For the reasons discussed below, the defendant's
motion is ALLOWED IN PART and DENIED IN PART.
Fed.R.Civ.P. 54(d), “costs - other than attorney's
fees - should be allowed to the prevailing party, ”
unless a rule of civil procedure, a federal statute, or a
court order provide otherwise. Pursuant to 28 U.S.C. §
1920, the costs that are recoverable under Rule 54(d) include
fees for printed or electronically recorded transcripts
necessarily obtained for use in the case, and fees and
disbursements for witnesses. The specific witness fees that
are recoverable are detailed in 28 U.S.C. § 1821.
court's ability to deny costs that are eligible for
taxation under Rule 54(d) operates with a “background
presumption favoring cost recovery for prevailing
parties.” In re Two Appeals Arising Out of the San
Juan Dupont Plaza Hotel Fire Litig. (San Juan Dupont Plaza
Hotel Fire Litig.), 994 F.2d 956, 962 (1st Cir. 1993).
Thus, “[w]hen denying costs, a district court must
offer an explanation for doing so unless the basis for
denying costs is ‘readily apparent on the face of the
record.'” B. Fernandez & HNOS, Inc. v.
Kellogg USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008)
(quoting San Juan Dupont Plaza Hotel Fire Litig.,
994 F.2d at 963).
defendant contests the deposition transcript fees for Dr.
Biswas ($1, 080), Dr. Podbros ($1, 117.50), Dr. Buza ($1,
144.60),  and the plaintiff ($745, $1, 127.70, and
$904.40 for the plaintiff's three depositions), arguing
that their depositions were not obtained for use at trial.
The defendant also takes issue with the deposition costs
associated with two witnesses who had previously been parties
to the present litigation against the defendant. Finally, the
defendant contests the video costs associated with Dr.
28 U.S.C. § 1920, fees for transcripts
“necessarily obtained for use in the case, ” are
recoverable. Such transcripts are necessarily obtained for
use in the case if they are “either introduced in
evidence or used at trial.” Templeman v. Chris
Craft Corp., 770 F.2d 245, 249 (1st Cir. 1985),
cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88
L.Ed.2d 556 (1985). Deposition transcript fees may also be
recoverable “if special circumstances warrant
it.” Id. However, using deposition transcripts
to merely prepare for trial or in legal memoranda is not
sufficient to impose costs. Haemonetics Corp. v. Fenwal,
Inc., 863 F.Supp.2d 110, 116-17 (D. Mass. 2012);
Walters v. President & Fellows of Harvard Coll.,
692 F.Supp. 1440, 1443 (D. Mass. 1988) (“Although these
depositions may well have been necessary to the thorough
preparation of the plaintiff's case, she has not
demonstrated any special circumstances warranting the
recovery of the associated costs.”).
plaintiff argues generally that the deposition transcripts of
the plaintiff and three doctors were used to defend against
trial objections relating to their deposition testimony, but
fails to cite any specific examples. The record reflects that
plaintiff's counsel read from Dr. Buza's deposition
transcript on the second day of trial in response to an
objection from defense counsel. (See Tr. II:128-29).
However, the record does not show that the plaintiff used the
other witnesses' deposition transcripts at trial. The
plaintiff has also failed to articulate any special
circumstances warranting the recovery of these fees. Thus,
the defendant is only responsible for paying the deposition
transcript costs of Dr. Buza, and shall not be taxed on the
costs of the deposition transcripts for Dr. Biswas, Dr.
Podbros, and the plaintiff.
defendant also argues that the deposition transcript fees for
former plaintiffs Cheryl Carnevale and Gwendolyn Farrell
should not be included because those depositions were taken
in connection with their individual claims. The defendant
contends that because those claims were settled before this
case went to trial, the former plaintiffs already paid the
deposition costs in fee agreements with their own attorneys
and the defendant should not be made responsible for them.
The plaintiff does not address the issue of whether such
costs were previously paid by the former plaintiffs, but
contends that the defendant is responsible for paying them
because these depositions were taken with the knowledge that
they would be relevant to everyone's claims, including
the plaintiff's. The court agrees with the defendant that
it would be unreasonable to “double count” the