7th Circuit modifies jail doctor’s award

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A Northern Indiana jail doctor has failed to convince the 7th Circuit Court of Appeals that a district court awarded him the correct amount in his bill of costs after he won a lawsuit filed against him by an inmate.

David Lane Jr. was detained on state criminal charges at the jail in LaPorte County.

While in the jail, Lane sought medical care from Dr. Michael Person for a non-cancerous tumor. Person did not order surgical removal of the tumor, which Lane believes was required at the time. Lane eventually did have the surgery.

Lane sued Person for providing objectively unreasonable care in violation of his rights under the 14th Amendment.

During discovery, Person deposed Rick Nelson, a doctor who also treated Lane. Nelson testified that Person appropriately addressed Lane’s condition by ordering multiple MRIs and a consultation with a specialist.

Person moved for summary judgment and the district court determined that no reasonable factfinder could find Person liable and entered judgment in March 2021. A motion to reconsider was later denied.

After prevailing, Person filed a bill of costs under Federal Rule of Civil Procedure 54(d) requesting $4,017.59. Of that, $2,750 was a one-day witness fee for Nelson.

Lane objected to the bill of costs on the ground that his case had merit and Person should not have won. Lane did not specifically challenge any cost.

The court ruled that Lane’s argument did not overcome the presumption favoring the prevailing party’s recoupment of costs and it awarded the full amount on Sept. 13, 2021.

On Sept. 17, 2021, Lane filed his notice of appeal, appealing both the judgment and the bill of costs.

The 7th Circuit Court of Appeals affirmed judgment for Person in a per curiam opinion on Thursday, but modified the costs after finding the district court erred on the witness fee award.

First, because more than 30 days passed between the denial of his motion to reconsider the summary judgment decision and his notice of appeal, judges concluded it was too late to appeal the judgment.

Regarding the bill of costs, the 7th Circuit determined there was a “fundamental problem” in determining the award.

“Although § 1920 includes witness fees as an expense that may be taxed as a cost, another statute, 28 U.S.C. § 1821, more specifically addresses the allowable amount,” the judges wrote. “Thus, when a prevailing party seeks witness fees under Rule 54 ‘a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary.’

“Section 1821(b) limits Nelson’s fee to $40 per day, and no other authority allows more,” the judges continued. “Even the itemized list that Person submitted instructs that costs be calculated under § 1821(b). Nelson’s fee is thus capped at $40 for his single day of testimony.

“As a result, Nelson’s full fee of $2,750 could not be taxed as a cost under § 1920 and Rule 54(d). Awarding it was a legal error and, by definition, an abuse of discretion,” the judges concluded. “The district court’s explanation that costs are presumptively awarded is correct but not relevant to the question whether a specific cost may be included in the bill of costs”

The 7th Circuit further denied Person’s argument that the witness fee is recoverable as an expert’s fee under Federal Rule of Civil Procedure 26 as well as his argument that Lane waived “any” argument against the costs award by not challenging any line item.

“… We do not believe it would serve the ends of justice for a prevailing defendant to obtain a windfall at the expense of an incarcerated and indigent pro se litigant who objected— broadly, to be sure—to the bill of costs,” the judges wrote, citing Humphries v. CBOCS West, Inc., 474 F.3d 387, 391 (7th Cir. 2007). “The extent of the cost was capped by statute, and Lane’s filings brought that pure issue of law to our attention.”

Therefore, the 7th Circuit remitted the cost recovery for Nelson’s witness fee to the statutorily allowable $40, so Person can recover total costs of $1,307.59.

The case is David Lane, Jr. v. Michael Person, 21-2710.

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