Brown v. Butler, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

JEFFREY J. BROWN and TRACY

BROWN,

Plaintiffs-Appellants,

v.



DAN E. BUTLER and KATHERINE

BUTLER,

Defendants-Appellees.

Nos. 00-6304, 01-6170

(D.C. No. 99-CV-1343-M)

(Western District of Oklahoma)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before BRISCOE,

Circuit Judge, HOLLOWAY, Senior Circuit Judge, and

McWILLIAMS, Senior Circuit Judge.

These two appeals were separately briefed. No. 00-6304 was orally argued and

No. 01-6170, per agreement of counsel and the court, was submitted on the briefs. Both

appeals will be treated in this order and judgment.

No. 00-6304

The two cases have their genesis in an automobile accident on September 20,

1996, wherein a motor vehicle traveling pre-dawn on a country road in Oklahoma was

driven into a herd of cattle and struck a 400-pound calf. The automobile was being

driven by Jeffrey J. Brown, a resident of Kansas, and the herd of cattle was owned by Dr.

Dan E. Butler and his wife, Katherine Butler, residents of Oklahoma.

Based on that accident, Jeffrey Brown and his wife, Tracy Brown, brought an

action in the United States District Court for the Western District of Oklahoma against

both Dan and Katherine Butler. The matter in controversy was alleged to be in excess of

$75,000.00 and jurisdiction was based on 28 U.S.C. § 1332. The Browns alleged in their

complaint that the Butlers owned pasture land adjacent to the road where Jeffrey Brown

struck the herd of cattle which belonged to the Butlers. The complaint went on to state

that the defendants were negligent in having "failed to keep their pasture land properly

fenced, thus allowing their livestock to escape the pasture and travel into the public

roadway, specifically Purdue Road." As the proximate result of the Butlers' negligence,

Jeffrey Brown alleged that he had suffered permanent injuries
name="txt1a">(1) and a loss of earnings,

and Tracy Brown alleged that she had suffered a loss of consortium, and the like, all in

excess of $75,000.00, and sought damages in excess of that sum, and also sought

punitive damages in excess of $75,000.00.

By answer, the Butlers denied any negligence on their part and affirmatively

alleged that if either of them was in some degree negligent, Jeffrey Brown's own

negligence exceeded theirs.

Prior to trial, the district court denied the Butlers' motion for summary judgment,

concluding that there were genuine issues of material fact that required submission to a

jury. Butlers' motion to reconsider that matter was denied. Trial by jury ensued. The

jury's verdict was in favor of the Butlers, the jury finding that they "were not negligent."

Judgment in favor of the Butlers was duly entered. The Browns appeal that judgment.

We affirm.

The Browns' basic argument on appeal is that the district judge was "prejudiced"

against them, and their case, that such prejudice was demonstrated by several adverse

rulings of the district judge in connection with evidence proffered by their counsel, and

that the cumulative effect thereof was a "miscarriage of justice."
name="txt2a">(2) As a lead-in to that

argument, counsel notes that in denying the Butlers' motion for a directed verdict at the

conclusion of the plaintiffs' case, the district judge characterized the plaintiffs' case as

being "arguably thin." Such does not demonstrate judicial prejudice. In view of the

jury's verdict, the case was "arguably thin." In any event, so far as we can tell from the

record before us, this statement was not made by the judge in the jury's presence.

As indicated, to show that the district judge was not impartial, counsel relies, in

part, on the district judge's exclusion of certain pictures and a videotape
name="txt3a">(3) of the "water

gap" in the wire fence that enclosed the Butlers' pasture, the "water gap" being the place

where the herd apparently escaped the pasture. In this connection we note that numerous

other pictures of the "water gap" were allowed into evidence. Also, counsel asserts that

the district judge's partiality was shown by her refusal to allow counsel to cross-examine

a state trooper, who investigated the accident and was called as a defense witness, as to

whether, in his opinion, the Butlers were guilty of gross negligence, or "unreasonable

conduct."(4) Finally, prejudice of the district

judge was also demonstrated, according to

counsel, by the fact that the district judge refused to allow counsel at trial to introduce

evidence which would conceivably be probative on the issue of punitive damages. In

this regard, the issue of punitive damages was not submitted to the jury, and, of course,

the jury's verdict was "no negligence" on the part of the Butlers.

Be that as it may, the various matters urged in support of the Browns' basic claim

that the district judge did not act in an impartial manner, viewed singularly or

collectively, do not indicate prejudice or bias on the part of the trial judge. In her

numerous evidentiary rulings, the district judge did not abuse her discretion, or otherwise

indicate personal bias or prejudice. In National Ass'n of Professional Baseball Leagues,

Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1152 (10th Cir. 2000), we said that an

abuse of discretion in connection with evidentiary rulings would be found only when the

trial court makes "an arbitrary, capricious, whimsical or manifestly unreasonable

judgment." In our view, the district judge was neither "arbitrary, capricious, [or]

whimsical." Nor did she manifest "unreasonable judgment." Bias or prejudice has not

been shown.

Counsel for the Browns also complains that the district judge acted improperly,

showing "prejudice," when she forced counsel to proceed with closing argument on short

notice and limited counsel to only 15 minutes in his closing argument to the jury. Trial

of this case commenced on Monday, July 24, 2000, and it was the intent of all concerned

that the trial would end on the following Monday, July 31, 2000. Counsel for the Butlers

had informed opposing counsel, and the court, that they had an expert witness who

would not be available until the 31st. However, on Friday, July 28, 2000, counsel for the

Butlers advised all of a change in plans and that they no longer intended to call the

witness in question. Whereupon the district judge advised all that she proposed to

conclude the trial on that day, the 28th, and only give the instructions to the jury on

Monday, the 31st. Counsel for the Browns indicated that he was displeased with that

proposed change in schedule and preferred to argue his case to the jury on Monday

morning rather than on Friday afternoon, and that he should be allowed more than 15

minutes to argue. The court did not go along with that suggestion and the trial proper

was concluded on Friday afternoon, with, as stated, counsel on each side being limited to

15 minutes in closing argument. Counsel cites no authority in support of his suggestion

that we should reverse the district judge's judgment and remand for a "new and fairer

trial," presumably before a different judge, because he was not allowed to argue, in

closing argument, more than 15 minutes. A trial court's control over the trial process is

reviewed under an abuse of discretion standard and "a district court has broad discretion

in limiting the scope of closing arguments." United States v. Rogers, 960 F.2d 1501,

1513 (10th Cir. 1992). We find no abuse of discretion. Further, as counsel's closing

arguments are not in the record on appeal, we are unable to conclude the Browns were

prejudiced as a result of their counsel having insufficient time to prepare for closing

argument. See Scott v. Hern, 216 F.3d 897, 917 (10th Cir. 2000).

Judgment affirmed.(5)

No. 01-6170

As indicated, the jury in the underlying case returned a verdict in favor of the

defendants, and a judgment in favor of the defendants was duly entered. Thereafter

counsel for the defendants filed a bill of costs in which they sought an award of

$33,856.84. The bill was supported by a very detailed itemization as to the nature and

amount of the monies sought. The plaintiffs filed an objection to the defendants' bill of

costs and asserted that defendants only had "recoverable costs" in the amount of

$3,077.17. The clerk of court held a hearing on the matter and then granted the costs in

the amount of $3,044.99.

Thereafter, counsel for the defendants filed with the district court a "motion for

expert witness fees and travel expenses." That motion asked for the following: (1) expert

witness fees for Drs. Reitz and Edwards, each of whom testified at trial as defense

witnesses concerning the alleged physical injury sustained by Jeffrey Brown when he

inhaled the toxic fumes; (2) the cost of obtaining a transcript of testimony given at the

trial by Jeffrey Brown and used by counsel in the conference on jury instructions; (3)

travel expenses to Dallas, Texas, for defense counsel to attend the taking of a deposition

by Dr. Rea, plaintiffs' expert witness; and (4) "Plaintiffs' Portion of Examination of

William Greaves, M.D." In connection with this last matter, counsel, in his motion,

spoke as follows:

The parties took the discovery deposition of Dr. Greaves in

Milwaukee, Wisconsin on June 13, 2000. According to the

billing attached to Schedule "B," line 3, to the Bill of Costs,

Mr. Grider deposed Dr. Greaves for eight (8) hours at $340

per hour, plus a 15% Medical College administrative

assessment, for a total cost of $3,128.00. Mr. Grider agreed

that the plaintiffs are responsible for this portion of the billing

by Dr. Greaves. The defendants seek an Order to that effect

to avoid misunderstandings.

Plaintiffs thereafter filed objections to defendants' motion for expert witness fees

and travel expenses, objecting to any additional costs being taxed. The district court

eventually ordered expert witness fees in a total amount of $4,925.00 for Drs. Reitz and

Edwards and in an amount of $3,120.00 for Dr. Greaves, the latter sum representing that

portion of Dr. Greaves' "expert time" resulting from counsel's eight-hour examination of

Dr. Greaves upon deposition, which amount, according to Butlers' counsel, Browns'

counsel had agreed to pay. The other requests, i.e., reimbursement for the cost of having

Mr. Brown's testimony transcribed and for travel costs incurred by counsel in connection

with Dr. Rea's deposition, were denied. By his notice of appeal, counsel appeals the

district court's award of costs to the defendants "over and above those set by the Court

Clerk of the Western District of Oklahoma."

Fed.R.Civ.P. 54(d) reads as follows:

(d) Costs; Attorneys' Fees

(1) Costs other than Attorneys' Fees. Except

when express provision therefor is made either

in a statute of the United States or in these

rules, costs other than attorneys' fees shall be

allowed as of course to the prevailing party

unless the court otherwise directs . . . ."

In granting the Butlers' request that the Browns pay an expert witness fee to both

Dr. Reitz and Dr. Edwards, the district court relied on United States v. City of Twin Falls,

Idaho, 806 F.2d 862, 876-9 (9th Cir. 1986)("Twin Falls"). On appeal,

opposing counsel

argues that Twin Falls is the exception to the general rule that the "prevailing party"

is

not entitled to recover from the "losing party" an expert witness fee for his own expert

witnesses who testified at trial. Counsel suggests that the present case does not come

within Twin Falls since the expert witnesses' testimony in the present case related to

Jeffrey Brown's alleged injuries resulting from his inhalation of toxic chemicals, and the

cause thereof, and that the jury never reached that question since they found "no

negligence" on the part of the Butlers. In other words, counsel in this court concedes that

the district court in its discretion could award the Butlers' expert witness fees for Dr.

Reitz and Dr. Edwards who testified at trial, but contends that the district court abused

such discretion because, and only because, the jury by finding "no negligence" never

reached the question of whether Jeffrey Brown sustained injuries from the collision of

his vehicle with Butler's cow and inhaled fumes from the spilled carbon disulfide

container. This, of course, is pure hindsight. At the time Drs. Reitz and Edwards

testified, it was not known that the jury would find "no negligence," and if the jury had

found that the Butlers were negligent, then Jeffrey Brown's claimed injury resulting from

his inhalation of toxic substances would have been crucial, and in connection therewith

the testimony of Drs. Reitz and Edwards would have been most germane. In this regard,

the district court found that the testimony of Drs. Reitz and Edwards was "essential in

establishing the defense against Brown's claim that he suffered injury as a result of the

September 20, 1996, incident."

Although the argument that the district court erred in awarding the Butlers expert

witness fees for their two expert witnesses, Drs. Reitz and Edwards, solely because the

jury, by its finding of no negligence on the part of the Butlers, never reached the question

of Jeffrey Brown's alleged physical injuries and the cause thereof, borders on the

specious, we are nonetheless concerned with the broader question, which we cannot

ignore, of whether the district court had the authority to award expert witness fees for

either Dr. Reitz or Dr. Edwards. As indicated, in making such award the district court

relied on the reasoning of the Ninth Circuit in Twin Falls. In this connection, we

note

that the Ninth Circuit in Association of Flight Attendants v. Horizon Air Indus., Inc.,

976

F.2d 541, 551-52 (9th Cir. 1992) ("Flight Attendants") stated that the Supreme Court

had

"effectively overruled" Twin Falls in Crawford Fitting Co. v. J. T. Gibbons,

Inc., 482

U.S. 437, 442 (1987) ("Crawford"). In Flight Attendants the Ninth

Circuit said that the

Supreme Court in Crawford held that "a federal court may tax expert witness fees in

excess of the [] limit set out in § 1821(b) only when the witness is court

appointed."

Flight Attendants, 976 F.2d at 552. Drs. Reitz and Edwards were not court

appointed,

but retained by the Butlers and testified on their behalf at trial.

28 U.S.C. § 1920 provides as follows:

§ 1920. Taxation of costs

A judge or clerk of any court of the United States may tax as costs

the following:

. . . . .

(3) Fees and disbursements for printing and

witnesses.

28 U.S.C. § 1821 provides as follows:

§ 1821. Per diem and mileage generally; subsistence

(a)(1) Except as otherwise provided by

law, a witness in attendance at any court of the

United States, or before a United States

Magistrate, or before any person authorized to

take his deposition pursuant to any rule or order

of a court of the United States, shall be paid the

fees and allowances provided by this section.

. . .

(b) A witness shall be paid an attendance

fee of $40 per day for each day's attendance. A

witness shall also be paid the attendance fee for

the time necessarily occupied in going to and

returning from the place of attendance at the

beginning and end of such attendance or at any

time during such attendance.

In considering the relationship between § 1920 and § 1821 and Rule 54(d),

the

Supreme Court in Crawford spoke as follows:

We think that the inescapable effect of these sections in

combination is that a federal court may tax expert witness fees

in excess of the $30-per-day limit set out in § 1821(b) only

when the witness is court-appointed. The discretion granted by

Rule 54(d) is not a power to evade this specific congressional

command. Rather, it is solely a power to decline to tax, as

costs, the items enumerated in § 1920.

Crawford, 482 U.S. at 442.

In Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1292

("Chaparral")

we followed the mandate of Crawford and spoke as follows:

Because federal procedural law governs the taxation of costs,

any discretion afforded the trial court would arise under federal

law, namely Fed.R.Civ.P. 54(d), and not under state law. That

discretion is constrained by 28 U.S.C. §§ 1821 and 1920.

Crawford Fitting Co. v. J. T. Gibbons, Inc., 107 S.Ct. at 2498-99. In the absence

of an explicit statutory authorization, a trial

court has no discretion under Fed.R.Civ.P. 54(d) to tax the

actual costs of expert witness fees. Id. (Emphasis added.)

We find no "explicit statutory authorization" to the contrary, and in accord with

Crawford and Chaparral we conclude that the district court erred in

awarding to the Butlers

$4,925.00 representing expert witness fees for Drs. Reitz and Edwards.

In granting the Butlers' request that the Browns pay a portion of Dr. Greaves' "expert

time" spent in connection with the deposition requested by the Browns' counsel wherein the

latter examined Dr. Greaves for some eight hours, we find no abuse of discretion by the

district court. Fed.R.Civ.P 26 (b)(4)(A) provides as follows:

A party may depose any person who has been identified as an

expert whose opinions may be presented at trial. (Emphasis

added.)

In this same general connection, Fed.R.Civ.P. 26(b)(4)(C) provides as follows:

"[U]nless manifest injustice would result, (i) the court shall

require that the party seeking discovery pay the expert a

reasonable fee for time spent in responding to discovery under

this subdivision . . . ."

We see no "manifest injustice" in requiring the Browns to pay a portion of Dr.

Greaves' "expert time" spent during the Browns' extended (eight hours) interrogation of Dr.

Greaves at the deposition requested by the Browns. Counsel's argument that since Dr.

Greaves did not actually testify at trial, such somehow excuses the Browns from payment

of at least a portion of Dr. Greaves' "expert time," also borders on the specious. The fact

that Dr. Greaves was not called as a witness at the trial does not change the result.

Fed.R.Civ.P. 26(b)(4)(A) authorizes a deposition of "any person . . . who may be

presented

at trial. (Emphasis added.) And Fed.R.Civ.P. 26(b)(4)(C) states that "unless manifest

injustice would result . . . the court shall require that the party seeking discovery pay the

expert a reasonable fee for time spent in responding to discovery."

The award of expert witness fees for Drs. Reitz and Edwards is reversed and that

matter is remanded to the district court with directions that it award Drs. Reitz and

Edwards

witness fees in accord with 28 U.S.C. § 1821(b). The award of the expert witness fee for

Dr. Greaves is affirmed.

ENTERED FOR THE COURT

Robert H. McWilliams

Senior Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

1.Jeffrey Brown had a container filled with

carbon disulfide used in oil well

operations in his vehicle at the time of this accident. As a result of the impact with the

Butlers' herd, the carbon disulfide was "spilled" and Brown, who was allegedly rendered

unconscious in the accident for some 23 minutes, sought damages for the injuries

resulting from his inhalation of the carbon disulfide fumes.

2.Counsel makes no claim that the jury's

verdict is contrary to the weight of the

evidence or that the evidence does not support the jury's verdict.

3.The videotape is narrated by a person who

tells the viewer of the videotape what

he or she is seeing. From the record, we are not certain of the identity of the narrator, or

who took the video, although, in each instance, it would appear to be Jeffrey Brown.

4.It appears that the trooper testified as a lay

witness, not as an expert witness. The

opinion of a lay witness is generally limited by Fed.R.Evid. 701. Counsel also notes the

district judge's rulings limiting the cross-examination of Katherine Butler.

5.On June 11, 2001, the Browns filed a

"Motion to Refile Opening Brief

Appendix." The motion was granted on the same date. On July 2, 2001, the Butlers filed

a "Motion Requesting Permission to Respond to Contents of Appellants' Opening Brief

Appendix and Appellees' Request for Affirmative Relief." In connection with this last

matter, the Butlers sought leave of court to file a supplemental response brief. On July 6,

2001, the Browns filed their objection to Butlers' request to file an additional brief. On

December 4, 2001, the Butlers filed a letter asking for "clarification" of their motion to

file a supplemental brief. On December 27, 2001, the Butlers filed a motion requesting

"clarification" of its letter sent the court on December 4, 2001. On January 4, 2002, the

Browns filed a response to the Butlers' motion to clarify. All of the matters, save and

except the Browns' "Motion to Refile Opening Brief Appendix,"which had already been

granted, were referred for consideration and disposition to "the panel assigned to dispose

of the case on the merits." This panel now denies the Butlers' motion of July 2, 2001,

requesting, inter alia, leave of court to file a supplemental response brief.

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