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Plaintiffs in mass tort drug and device litigation do not like to focus on the individual cases.  They like to amass the individual cases.  They like to file the individual cases.  But as we see all too often those filings tend to be indiscriminate and without the benefit of proper early vetting.  That is what leads to situations like the Taxotere MDL we discussed last week – eight years of litigation and thousands of cases without basic proof of injury.  Which means the burden of finding the evidence, or lack thereof, on case specific causation and injury usually falls to the defendants.  Defendants who spend hundreds of thousands of dollars to obtain copies of plaintiff’s medical records.  Medical records, which most courts eventually recognize plaintiffs should have as part of their Rule 11 due diligence.  So, we couldn’t ignore a ruling granting defendants’ motion to recover the costs of doing that case-specific leg work that plaintiffs ignore.  In re Zofran (Ondansetron) Products Liability Litigation, 2024 WL 841413 (D. Mass. Feb. 28, 2024).

So much good news has come from the Zofran MDL that today’s case is just the latest chapter.  As we have previously discussed, the defendant won the MDL on preemption grounds, and had that win affirmed on appeal.  As the prevailing party, the defendant earned the right to recover taxable costs as permitted by Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920.  Section 1920 enumerates the specific allowable costs.  The court examined each in turn. 

  1. Filing fees for removing 40 cases to federal court.  These were denied as “not necessarily incurred in the defense of the cases.”  Id. at *2.
  • Process server fees for 27 subpoenas.  Defendant used a private process server but was only allowed to recover the equivalent of the marshal’s fee which is capped at $65 per subpoena.  Id.
  • Deposition transcript fees.  Defendant sought to recover the costs associated with 56 depositions.  Plaintiff argued the costs were not recoverable because the depositions had not been used at trial and/or were depositions of defendant’s own employees.  The court agreed with the latter point and disallowed costs for depositions of current employees.  Id. at *3.  However, as to the former point, the court found that it had discretion to permit recovery where depositions are relied on by the prevailing party in a dispositive motion.  Therefore, the court allowed recovery for seven of the depositions relied on by defendant in its motion for summary judgment.  The court did not agree that this extended to depositions of experts challenged by plaintiff on Daubert motions.  Id.
  • Witness fees.  The court allowed the recovery of the statutory attendance fee of $40 for 20 of defendant’s employees who were deposed.  Id. at *4.
  • Fees for Exemplification and Copies aka Medical Records.  

Defendant sought recovery of over $400,000 in costs associated with obtaining plaintiff’s medical records.  Those are the costs charged by the recorders providers themselves and did not include the fees to the vendor retained by defendant to scan, upload, and process the records.  Plaintiff argued that the costs should be disallowed because defendant “failed to explain their purpose or necessity to the judgment obtained.”  Id.

The “critical” question for the court was whether the medical records were “necessary” for use in the litigation.  Plaintiff argued that question should be answered in the negative because no medical records were used at trial or in the preemption ruling that terminated the litigation.  While that may mean they were not “used in the strictest sense of the term,” the court took a different view of necessity:

The fees at issue here, however, stand on a different footing from ordinary photocopying costs. This proceeding involved hundreds of personal-injury lawsuits, each of which alleged that children were being born with serious birth defects. The fees in question were imposed by health-care providers and other third parties as a condition of obtaining the relevant medical records. It would have been folly, if not actual legal malpractice, for [defense] counsel to have neglected to obtain and review those medical records. Nor would it have been possible, as a practical matter, to pick and choose among them in advance. It was therefore reasonable under the circumstances for [defendant] to seek copies of those records.

Under the circumstances presented here, the Court concludes that the costs are properly taxable. Defense counsel was effectively required to obtain their medical records, and had little, if any, discretion in selecting among them or narrowing the scope of the requests. No aspect of those costs was driven solely by the convenience of counsel, as opposed to the practical necessities of defending hundreds of personal-injury cases. 

Id. at *4-5 (emphasis added).  Amen!  Defendants are obligated to get medical records in personal injury cases and not to do so would be malpractice.  As we discussed last week and so often when we talk about things like Lone Pine orders, those medical records are crucial documents that plaintiffs themselves should obtain even before filing suit.  Having not undertaken that proper vetting task at the outset, it seems entirely reasonable to charge them in the end for defendant taking on that burden. 

  • Docket Fees.  Plaintiff only wanted to allow recovery of a single docketing fee of $20, but the court agreed with defendant that the docket fees were recoverable per case. 

Finally, plaintiff argued the court should exercise its discretion to disallow all fee recovery because the corporate defendant was in a better position to absorb the costs than the individual families who filed suit.  Even assuming it had such discretion (doubtful), the court declined to exercise it.  District Court guidance provides that the court “can give no consideration to whether the lawsuit addressed important social issues, whether it was brought in good faith, or whether the relative financial status of the parties.”  Id. at *5.   Nor did the court need individualized hearings for each plaintiff.  Each plaintiff will bear the costs of his/her own medical records and the remaining costs will be divided pro rata—working out to a little over $1000 per plaintiff.   Hardly an unreasonable amount for a complete defense victory.