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The Field Club, Inc. v. Robin Alario, et al., Case No. 2D14-4838 (2nd DCA)

The plaintiffs in Alario filed suit against The Field Club after one of the plaintiffs sustained injuries from being struck in the head by a metal shutter on The Field Club’s property. At trial, the jury returned a verdict for the plaintiffs, and the plaintiffs moved for taxable costs as the prevailing party. They requested a total of nearly $134,000 in costs but were awarded just over $47,000. The defendant appealed, arguing that the trial court erred in awarding three categories of costs.

First, the defendant argued that the trial court should not have awarded costs for real-time court reporting. The Second District agreed. The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions provides that “reasonable court reporter’s per diem for the reporting of evidentiary hearings, trial and post-trial hearings should be taxed, but the Guidelines do not provide for the taxation of ‘real-time’ court reporting fees.’” Even though “the trial court does have the discretion to deviate from the Guidelines where it has been shown that the requested costs were reasonably necessary under the unique circumstances of the case, the trial court did not make any such findings here.”

Second, the defendant argued that the trial court improperly awarded certain overhead expenses, including online investigation, preparation of Freedom of Information Act requests, background checks, overnight shipping costs and the production of a DVD that was not used at trial. The Second District noted that the Guidelines do not provide for the taxation of these costs, and “appellate courts have consistently held that certain costs and expenses are not taxable because they are considered overhead.” The Second District found these costs to be overhead, and not awardable.

Lastly, the defense argued that the trial court erred in awarding expert fees for one of the plaintiffs’ experts and one treating physician. The Second District noted that “[w]here a party specifically objects to setting an expert witness fee without the presentation of evidence, an evidentiary hearing must be held at which the prevailing party must present testimony on the reasonableness and necessity of the fee.” The objection should be made before the evidentiary hearing, and the Second District here found that the defense had timely objected through its responsive papers. Therefore, the need for an evidentiary hearing was triggered. The trial court held an evidentiary hearing, at which point the plaintiffs had an opportunity to present competent evidence that their requested expert fees were both reasonable and necessary. The testimony must come from witnesses qualified in the areas concerned. “The experts whose charges in the same field are qualified to provide this testimony as are other qualified experts in the same field who have reviewed the trial record. But the testimony of an ‘omnibus witness’ who is not proficient in each area of expertise – a trial attorney, for example – is by itself insufficient to support a claim for expert witness fees.” Here, the plaintiffs failed to present competent testimony that the expert fees were reasonable and necessary, and instead relied solely on their trial attorney’s affidavit. The Second District additionally noted that because the plaintiffs had been given one opportunity to present testimony but failed to do so, they are not entitled to another evidentiary hearing.
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