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Monday, February 07, 2005

Ind. Decisions - 7th Circuit posts one today

Anderson, Jessie v. Griffin, Roy (ND Ind., Philip P. Simon, Judge) [14 pp.]

Before POSNER, MANION, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The jury in this diversity suit for damages arising out of a highway collision returned a verdict for the defendants. The appeal challenges the voir dire, an instruction, the judge’s refusal to grant a new trial on the ground that the verdict was against the weight of the evidence, and the computation of court costs. The substantive issues are governed by the common law of Indiana; the others, of course, by federal law. * * *

[Plaintiffs object to jury instructions] Nevertheless the plaintiffs insist that the instruction is improper under Indiana law. They point out that in Miller v. Alvey, 207 N.E.2d 633, 636-37 (Ind. 1965), the Indiana Supreme Court said:

The expression “unavoidable accident” or “pure accident” is not an affirmative defense and has no particular connotation in modern pleading of negligence cases. Such terminology adds nothing to the issues before the court or jury and as the expressions are ambiguous and particularly confusing to lay jurors, their use in instructions is undesirable and unwise and any statements in prior decisions of this state construed as authorizing instructions on “pure accident” or “unavoidable accident” are hereby disapproved.
[See pp. 7-9 of opinion for discussion of this issue.]

Last, the plaintiffs challenge the award of court costs pursuant to Fed. R. Civ. P. 54(d)(1). For obscure reasons, given the “American rule” that requires each side to a lawsuit to bear its legal expenses rather than making the loser reimburse the winner’s reasonable expenses, the law allows the winning party to recover from the loser the winner’s “court costs,” a stereotyped list of usually though not always modest items of expense, exclusive of legal fees. (They amount here to a shade under $13,000.) * * *

The plaintiffs do not argue that impermissible items were included in the defendants’ bill of costs or that the cost awarded per item pierced the ceiling set by rules or statute. They argue instead that the defendants took more depositions than they had to and in this and other ways drove up their court costs unnecessarily. This is a bad argument because, as we have had occasion to note recently, a painstaking judicial inspection of fee claims (and equally cost claims) is unnecessary when there is a market constraint on running up excessive expenses. Taco Bell v. Continental Casualty Co., supra, 388 F.3d at 1075. When taking depositions the defendants could have had no confidence that they were going to win the case and thus be able to submit a bill of costs, or that if they won and therefore could submit such a bill the plaintiffs would have the wherewithal to pay it. So they had an incentive not to take unnecessary depositions or otherwise incur excessive costs. That incentive was a better check on extravagance than would be a court’s effort to decide after the fact whether a particular expenditure was sensible given its anticipated contribution to a favorable outcome of the litigation. * * *

We are given no reason to think that recognizing a right of contribution with regard to court costs would serve any purpose other than to encumber federal litigation, which needs no additional encumbrances. No showing has been made that a particular plaintiff or plaintiffs was disproportionately responsible for the costs that the judge has awarded against them, and so each plaintiff is jointly and severally liable for the costs that the judge awarded to the defendants. Affirmed.

Posted by Marcia Oddi on February 7, 2005 12:15 PM
Posted to Ind. (7th Cir.) Decisions