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Thelen v. Somatics, LLC, 2023 U.S. Dist. LEXIS 165819 (Mag. M.D. Fla. Sept. 18, 2023), is the latest chapter in a saga we have covered before. (We discussed decisions on expert admissibility here, invalid claims here, confidentiality of medical records here, and the plaintiff’s highly unusual demand for a plant inspection here.) The plaintiff claimed to have suffered injuries as a result of electroconvulsive therapy (ECT).  The plaintiff sued the manufacturer of the ECT medical device, pursuing causes of action for negligence, strict liability, breach of warranty, and violation of the Nebraska Consumer Protection Act. 

The plaintiff ultimately went to trial on his remaining claims (negligence and strict liability)  and recovered … nothing. The jury found a warning defect, which was nice for the plaintiff, but also found no proximate causation, which was even nicer for the defendant.  Overall, we’d have to say the result was much nicer for the defendant than the plaintiff.  A finding of liability and an award of zero damages is a defense win and a plaintiff loss in anyone’s book, right?

The court clerk entered a judgment in favor of the defendant. Then the court directed the defendant to file a bill of costs.  The defendant did so. Costs exceeded $39,000. Then the plaintiff moved the court to review the costs. The defendant disagreed. Now the costs issue was teed up for the Magistrate Judge. 

So what? While the disposition of individual cost items is case-specific and not especially blogworthy, the court’s rejection of the plaintiff’s two general arguments against taxation of costs is significant.  

First, the plaintiff claimed that, since a defect was found, the defendant was not a “prevailing party” despite its winning an overall defense verdict.  Nice try. (Not really).  The ultimate result, that the plaintiff took nothing, is all that matters.  This was not a mixed outcome case where both parties prevailed on some of their claims.  The judgment here was only for the defendant.  When that happens, the defendant is the prevailing party and is entitled to costs.  “Accordingly, the court finds that Defendant is the prevailing party under Rule 54(d) and is thus entitled to a presumption of taxable costs.”

Second, the plaintiff’s claimed indigency was no basis to deny costs.  The plaintiff argued that “the court should exercise its discretion and decline to award costs because of Plaintiff’s financial status.”  There is, in fact and law, room for judicial discretion in this area. But the Thelen magistrate “decline[d] to recommend considering Plaintiff’s financial status in assessing the taxation of costs.”  Not only did the plaintiff fail to support the claim with anything more than his own self-serving statements, but the “relative wealth” of the parties is not a factor in entitlement to costs.  Limited resources do not overcome the ”strong presumption”  that a prevailing party is entitled to costs.

The Magistrate Judge in Thelen then took a detailed tour through costs of trial transcripts, deposition fees, photocopy fees, scientific article fees, witness fees, and clerk fees. The court ended up sustaining some of the plaintiff’s objections and cut the costs bill down to approximately $27,000. That exercise in flyspecking might be useful for some of you, in which case you should flip through the opinion. We do not find much of general interest in the court’s cost accounting decisions. They are certainly not shocking.