Howard v. Offshore Liftboats, LLC et al, No. 2:2013cv04811 - Document 906 (E.D. La. 2016)
Court Description: ORDER AND REASONS RE 875 Motion for Taxation of Costs. ; 877 Motion for Taxation of Costs. ; 878 Motion for Bill of Costs - IT IS ORDERED that the motions to tax costs64 considered by the Court herein are GRANTED IN PART. Plaintiffs Raymond Howard and Calvin Howard are the prevailing parties in this action and, as a result, are entitled to recover from OLB 50% of their pre-offer costs under Rule 54(d). Pursuant to Rule 68(d), OLB is entitled to recover its post-offer costs from Plaintiffs. IT IS FURTHER ORDERED that this matter is referred to the office of the Clerk of Court for the taxation of costs in accordance with this ruling. Signed by Judge Susie Morgan on 6/24/16. (Reference: all cases)(cg) (NEF; Clerk)
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Howard v. Offshore Liftboats, LLC et al Doc. 906 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CALVIN H OW ARD , ET AL. CIVIL ACTION VERSU S N O. 13 -4 8 11 c/ w 13 -6 4 0 7 an d 14 -118 8 OFFSH ORE LIFTBOATS, LLC, ET AL. SECTION “E” ( 5) ORD ER AN D REAS ON S This m atter com es before the Court post-judgm ent for the taxation of costs under Rule 54(d) and Rule 68(d) of the Federal Rules of Civil Procedure. Plaintiffs Raym ond Howard and Calvin Howard and Defendant Offshore Liftboats, LLC (“OLB”), have filed m otions to tax costs, with each party represen ting that he, or it, is the prevailing party in this m atter and is entitled to costs under Rule 54(d). 1 OLB also seeks an award of postoffer of judgm ent costs pursuant to Rule 68(d), noting it m ade offers of judgm ent to both Raym ond Howard and Calvin Howard, which were not accepted, and arguing Raym ond and Calvin subsequently recovered a less favorable judgm ent at trial. 2 For the following reasons, the Court finds that Plaintiffs Raym ond Howard and Calvin Howard are the prevailing parties in this action and awards them 50 % of their preoffer costs under Rule 54(d). The Court also finds that, pursuant to Rule 68(d), OLB is entitled to recover its post-offer costs. BACKGROU N D The m atter of Calvin How ard, et al. v. Offshore Liftboats, LLC, et al. proceeded to a jury trial on J anuary 25, 20 16. The trial involved the claim s of Plaintiffs Calvin Howard and Raym ond Howard against their em ployer, Offshore Liftboats, LLC (“OLB”); K&K 1 R. 2 Docs. 875, 877, 878 . See R. Doc. 875. 1 Dockets.Justia.com Offshore, LLC (“K&K”); and the insurers of both entities. 3 The claim s asserted by the Plaintiffs were for various personal injuries, including alleged traum atic brain injuries, which the Plaintiffs claim they sustained during a failed personnel-basket transfer in the offshore waters of the Gulf of Mexico on May 16, 20 13. 4 Plaintiffs brought claim s against OLB, their em ployer, for J ones Act negligence; the unseaworthiness of OLB’s vessel, the L/ B J anie, under the General Maritim e Law; and m aintenance and cure. 5 Plaintiffs initially brought claim s against K&K, a non -em ployer third party, for negligence and unseaworthiness under the General Maritim e Law. 6 Plaintiffs’ claim s that K&K’s vessel, the M/ V Contender, was unseaworthy were dism issed prior to trial. 7 Plaintiffs settled their rem aining claim s with K&K after trial com m enced but prior to the subm ission of the case to the jury for decision. The trial lasted approxim ately four (4) weeks, concluding on February 19, 20 16, when the jury returned its verdict. The jury concluded that both OLB and K&K were negligent and that each one’s negligen ce played a part, however slight, in causing Plaintiffs’ injuries. 8 With respect to Plaintiffs’ unseaworthiness claim s against OLB, the jury found that OLB’s vessel, the L/ B J anie, was not unseaworthy under the General Maritim e Law. 9 The jury also found that neither Raym ond Howard nor Calvin Howard was negligent. 10 In allocating fault between OLB and K&K, the jury found OLB to be 20 % at fault for the accident and K&K to be 80 % at fault. 11 3 R. Doc. 757 at 6– 7 (Pretrial Order). See generally R. Doc. 757 at 5– 8 , 15– 22 (Pretrial Order). 5 See R. Doc. 218 (Second Am ended & Supplem ental Com plaint). 6 R. Doc. 218 (Second Am en ded & Supplem ental Com plaint). 7 R. Doc. 70 5 at 2. 8 R. Doc. 829 at 2– 3 (J ury Verdict). 9 R. Doc. 829 at 6 (J ury Verdict). 10 R. Doc. 829 at 4– 5 (J ury Verdict). 11 R. Doc. 829 (J ury Verdict). 2 4 LAW AN D AN ALYSIS Rule 54 of the Federal Rules of Civil Procedure creates “a strong presum ption that the prevailing party will be awarded costs.”12 Rule 54(d) provides, in part, that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Thus, to determ ine whether a party can recover its costs under Rule 54(d), the Court m ust determ ine whether that party is the “prevailing party” within the m eaning of Rule 54(d). 13 After prevailing-party status has been determ ined, the Court then m ust ask whether a federal statute, a Federal Rule of Civil Procedure, or a federal court order provides that costs, for one reason or another, should not be awarded to the prevailing party. 1. W ho are the Prevailing Parties under Rule 54(d)? “The ‘prevailing party’ determ ination is a clear, m echanical one; when a judgm ent is entered in favor of a party, it is the prevailing party.”14 In this case, judgm ent was entered in favor of Plaintiffs Raym ond Howard and Calvin Howard because each plaintiff prevailed on his negligence claim against OLB. 15 As explain ed in the judgm ent, the jury found that both K&K and OLB were negligent and that their negligence was a substantial factor in causing Plaintiffs’ injuries. 16 Furtherm ore, the jury found that neither Raym ond nor Calvin were at fault, assigning K&K 8 0 % of the fault and OLB 20 %. 12 Schw arz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985) (holding that when a district court declines to award costs to a prevailin g party, it should state its reasons for doin g so); Perry v. Port of Houston Authority , 31 F. App’x. 153 (5th Cir. 20 0 1) (rem anding the issue of costs to the district court for reconsideration for failing to award costs to the prevailing party and not stating its reasons for doin g so); Abate v. Kansas City Southern Ry . Co., No. 90 -1219, 1991 WL 195518, at n . 3 (E.D. La.1991) (Schwartz, J .) (quotin g Folloder, supra, and denying plaintiff's m otion to prorate costs). 13 See, e.g., Schw arz, 767 F.2d at 130 . 14 Allianz Versicherungs, AG v. Profreight Brokers, Inc., 99 F. App’x 10 , 13 (5th Cir. 20 0 4) (citing Baker v. Bow en , 839 F.2d 10 75, 10 81, (5th Cir. 198 8); see also 10 J am es Wm . Moore et al., M OORE 'S F EDERAL P RACTICE ¶ 54.10 1[3] (3d ed. 1998) (“[T]he prevailin g party is the party in whose favor judgm ent was entered, even if that judgm ent does not fully vindicate the litigant's position in the case.”)). 15 R. Doc. 854 (J udgm ent). 16 R. Doc. 854 (J udgm ent). 3 OLB points out, however, that, although the Plaintiffs prevailed on their negligen ce claim s an d were not allocated any fault, the Plaintiffs “did not prevail on their general m aritim e law claim s for unseaworthiness or for punitive dam ages for failure to pay cure.”17 For that reason, am ong others, OLB argues it was the prevailing party. Having reviewed Fifth Circuit authority, the Court finds that OLB’s argum ent is without m erit. The Fifth Circuit, interpreting Rule 54(d), has held that: A party n eed not prevail on all issues to justify a full award of costs . . . . Usually the litigant in whose favor judgm ent is rendered is the prevailing party for purposes of Rule 54(d). A party who has obtained som e relief usually will be regarded as the prevailing party even though he has not sustained all of his claim s. Cases from this and other circuits consistently support shifting costs if the prevailing party obtains judgm ent on even a fraction of the claim s advanced. 18 In this case, Plaintiffs prevailed on som e, but not all, of their claim s. Because the Plaintiffs prevailed on their negligence claim s against OLB, and because judgm ent was entered in favor of the Plaintiffs, the Court finds that Plaintiffs Raym ond Howard and Calvin Howard are the prevailing parties in this m atter under Federal Rule of Civil Procedure 54(d). 2. Does a federal statute, rule, or court order “provide otherw ise”? Although Rule 54(d) does not require that costs be awarded to the prevailing party, it states that costs should be awarded unless a federal statute, a federal rule, or a court order provides otherwise. Federal Rule of Civil Procedure 68 is one such rule that “provides otherwise” in certain circum stances. Rule 68 outlines the procedure for m aking a pre-trial offer of judgm ent and provides for the potential consequen ces to a plaintiff who does not accept such an offer: 17 R. Doc. 875-2 at 3. United States v . Mitchell, 580 F.2d 789, 793 (5th Cir. 1978) (alterations om itted) (citations om itted) (quotation m arks om itted), superseded by statute on other grounds, 42 U.S.C. § 3614. See also Tem pest Publ’g, Inc. v . Hacienda Records and Recording Studio, Inc., 141 F. Supp. 3d 712, 718 (S.D. Tex. 20 15). 4 18 ( a ) Makin g a n Offe r; J u d gm e n t o n a n Acce p te d Offe r. At least 14 days before the date set for trial, a party defen ding against a claim m ay serve on an opposing party an offer to allow judgm ent on specified term s, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party m ay then file the offer and notice of acceptance, plus proof of service. The clerk m ust then enter judgm ent. .... ( d ) Payin g Co s ts Afte r a n U n acce p te d Offe r. If the judgm ent that the offeree finally obtains is not m ore favorable than the unaccepted offer, the offeree m ust pay the costs incurred after the offer was m ade. 19 Rule 68 is m andatory and, if it applies, leaves no room for discretion by the district court. That is, if (1) the offer of judgm ent is not accepted and (2) the final judgm ent that the plaintiff obtains is less favorable than the offer, Rule 68 requires that the plaintiff pay the defendant’s post-offer costs. 20 Furtherm ore, when considered in conjunction with Rule 54(d), “Rule 68 operates against a prevailing plaintiff who does not accept a losing defendant’s offer, resulting in the loss of som e of the benefits of the prevailing party’s victory (costs pursuant to Rule 54(d)) in the event his recovery is less than the rejected offer.”21 In other words, if the plaintiff is the “prevailing party” under Rule 54(d) but (1) did not accept an offer of judgm ent m ade under Rule 68, and (2) ultim ately obtains a judgm ent that is less favorable than the offer of judgm ent, the plaintiff can only recover his pre-offer costs and m ust pay the defendant’s post-offer costs. 22 19 F ED. R. CIV. P. 68(a), (d). Johnston v. Penrod Drilling Co., 80 3 F.2d 867, 869 (5th Cir. 1986). 21 Carino v . W al-Mart Louisiana, LLC, No. 0 5CV1978, 20 0 7 WL 977553, at *1 (W.D. La. Mar. 28 , 20 0 7) (citing Louisiana Pow er & Light v. Kellstrom , 50 F.3d 319, 333– 34 (5th Cir. 1995)). 22 See, e.g., Brow n v. W al-M art Stores, Inc., No. 6:10 -140 2, 20 13 WL 39350 29, at *1 (W.D. La. J uly 26, 20 13) (citations om itted) (internal quotation m arks om itted) (alterations om itted) (“[U]nder Rule 68 , when a plaintiff does not accept a defendant’s Offer of J udgm ent which is m ore favorable than the J udgm ent the plaintiff ultim ately obtains, the plaintiff m ust pay the defendant’s costs which were incurred after the Offer of J udgm ent was m ade. Further, the plaintiff cannot recover otherwise awardable costs incurred after the date of the offer.”). 5 20 OLB extended separate offers of judgm ent under Rule 68 to Calvin Howard and Raym ond Howard on J anuary 8, 20 16. 23 The offer of judgm ent m ade to Calvin was in the am ount of $ 875,0 0 0 .0 0 , 24 and the offer of judgm ent m ade to Raym ond was in the am ount of $ 50 0 ,0 0 0 .0 0 . 25 The Court will first analyze whether OLB’s offer of judgm ent to Calvin in the am ount of $875,0 0 0 .0 0 was m ore favorable than the judgm ent that Calvin ultim ately obtained. The Court will subsequently engage in the sam e analysis with respect to Raym ond and OLB’s $ 50 0 ,0 0 0 .0 0 offer of judgm ent to him . a. Calvin Howard As stated previously, on J anuary 8, 20 16, OLB m ade an offer of judgm ent to Calvin Howard in the am ount of $ 875,0 0 0 .0 0 . 26 The offer of judgm ent stated, in part, that: Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Offshore Liftboats offers to allow Calvin Howard to take judgm ent against it as to the claim s asserted by Calvin Howard in the above captioned m atter in the total sum of $ 875,0 0 0 .0 0 . This offer of judgm ent is intended to resolve all of Calvin Howard’s claim s in this action, including without lim itation, any and all claim s for com pensatory dam ages, statutory dam ages, attorneys fees, litigation expenses, and costs of suit. 27 Calvin did not accept OLB’s $ 875,0 0 0 .0 0 offer of judgm ent, opting instead to proceed to trial and present his case to a jury of his peers. At the conclusion of trial, the jury returned a verdict awarding Calvin dam ages in the total am ount of $ 3,262,10 0 .0 0 , 28 for which OLB was found to be 20 % responsible. 29 The jury also found that, with respect 23 R. Docs. 875-8 , 875-9. R. Doc. 875-8 . 25 R. Doc. 875-9. 26 R. Doc. 875-8 . 27 R. Doc. 875-8 . 28 R. Doc. 829 at 8 (Physical pain and suffering and loss of enjoym ent of life in the past ($ 275,0 0 0 ); Physical pain and suffering and loss of enjoym ent of life in the future ($ 175,0 0 0 ); Men tal anguish in the past ($ 27,50 0 ); Mental anguish in the future ($ 30 0 ,0 0 0 ); Loss of earn in g capacity, including the value of frin ge benefits, in the past ($ 234,60 0 ); Loss of earnin g capacity, including the value of frin ge ben efits, in the future ($ 2,20 0 ,0 0 0 ); and Medical expenses in the future ($ 50 ,0 0 0 )). 29 R. Doc. 829 at 7. 6 24 to Calvin’s claim s for m aintenance and cure under the General Maritim e Law, Calvin would reach m axim um m edical im provem ent (“MMI”) on April 30 , 20 17. 30 The jury’s verdict becam e the judgm ent of the Court on March 23, 20 16. 31 OLB’s 20 % of Calvin’s dam ages award, as reflected in the judgm ent, am ounts to $ 652,420 .0 0 , which is clearly less than OLB’s $ 875,0 0 0 .0 0 offer of judgm ent to Calvin. The Rule 68 analysis, however, does not end here. The Court m ust add the other am ounts to which Calvin is entitled, such as (1) Calvin’s pre-offer of judgm ent costs, 32 and (2) the future m aintenance-and-cure to which Calvin is entitled until April 30 , 20 17 to determ ine whether the am ount reflected in the judgm ent is less than the offer of judgm ent. Calvin contends the am ounts for dam ages, pre-offer costs, and m aintenance are: Dam ages $ 652,420 .0 0 Pre-offer costs $ 46,634.96 Maintenance $ 14,875.0 0 To tal ( w ith o u t cu re ) $ 713 ,9 2 9 .9 6 Calvin represents that his pre-offer costs total $ 46,634.96. 33 OLB takes no position on the am ount Calvin’s pre-offer costs. The Court has wide discretion to award to the prevailing party the sum of its pre-offer costs or to award a percentage of the party’s preoffer costs. 34 The Fifth Circuit has stated, specifically, that “Rule 54(d) gives the district court the necessary discretion to tax costs against the party who should equitably bear 30 R. Doc. 829 at 10 . Doc. 854. 32 See, e.g., Barrow v. Green ville Indep. Sch. Dist., No. 3:0 0 -CV-0 913-D, 20 0 5 WL 6789456, at *21 (N.D. Tex. Dec. 20 , 20 0 5). 33 R. Doc. 886 at 7. 34 See, e.g., W eiser v . Horace Mann Ins. Co., No. 0 6-90 80 , 20 0 9 WL 5194972, at *3 (E.D. La. May 15, 20 0 9); see also Breeland v. Hide-A-W ay Lake, IN c., 58 5 F.2d 716, 722 (5th Cir. 1978) (“It is well established that the district court enjoys discretion in determ in ing who shall bear the costs of litigation and how m uch of the costs shall be apportioned to a taxed party.”). 7 31 R. them .”35 In this case, OLB was found to be only 20 % at fault. Moreover, Calvin was only partially successful on his claim s against OLB. For these reasons, the Court exercises its discretion and will m ake only a partial award of costs to Calvin, awarding him 50 % of his pre-offer costs. For purposes of this analysis only, the Court will use 50 % of Calvin’s figure, which is $ 23,317.48 . As noted above, the jury found that Calvin would reach MMI on April 30 , 20 17. The effect of the jury’s MMI finding is that OLB is obligated, until April 30 , 20 17, to pay any cure expenses actually incurred by Calvin and to pay Calvin m aintenance at the rate of $ 35.0 0 per day. Calvin represents that the value of the future m aintenance to which he is entitled from OLB is $ 14,875.0 0 . 36 Calvin calculated this figure by m ultiplying the approved rate of m aintenance, $ 35.0 0 per day, by 425 days—the num ber of days in between March 1, 20 16, and April 30 , 20 17, the date on which the jury concluded Calvin would reach MMI. OLB does not dispute that Calvin is entitled to $ 14,875.0 0 in future m aintenance paym ents. In fact, OLB m akes no representation as to the value of the future m aintenance paym ents that are owed to Calvin. Therefore, for purposes of this analysis only, the Court will use Calvin’s figure with respect to the value of his m aintenance award. With respect to cure, Calvin is entitled to receive cure paym ents for m edical expen ses that he actually incurs prior to reaching MMI. 37 For present purposes, to determ ine whether the value of Calvin’s final award is less than or exceeds OLB’s Rule 68 offer of judgm ent, the Court will m ake a realistic assessm ent of the value of Calvin’s future cure award. 38 Calvin represents that his life care planner, “Dr. Cornelius Gorm an, testified 35 Johnston, 80 3 F.2d at 870 – 71. See also Pacheco v. Mineta, 448 F.3d 783, 793– 94 (5th Cir. 20 0 6). R. Doc. 886 at 7. 37 See, e.g., Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 20 0 2) (“The duty to provide cure encom passes . . . the obligation to reim burse m edical expenses actually incurred.”) (em phasis added). 38 See, e.g., 12 Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 30 0 6.1, 150 – 51 (3d ed., 20 0 4). 8 36 that Calvin Howard would need to return to Touchstone Neurorecovery Center for 60 days,” and “a 60 -day stay would cost $ 60 ,0 0 0 .”39 Calvin also points to his request for “reim bursem ent of travel expenses in connection with transportation to and from m edical appointm ents, which am ounts to $ 31,624.47.”40 Calvin conten ds these two figures are but two exam ples of am ounts to which he is entitled under OLB’s future cure obligation. For purposes of this analysis only, the Court will include these am ounts, plus the addition al expen ses discussed below, in calculating the value of Calvin’s cure award. To calculate the value of Calvin’s rem aining cure expenses through April 30 , 20 17, the Court looks to the testim ony of Calvin’s life-care planner, Dr. Cornelius Gorm an. 41 Dr. Gorm an predicted that Calvin’s “plan of care,” for the rem ainder of his life, would cost approxim ately $ 12,0 73,868.75. 42 According to Dr. Gorm an, Calvin’s plan of care is broken down as follows: Facility Care $ 11,337,517.50 Financial Managem ent $ 427,50 0 .0 0 Future Medical Care Routine $ 122,921.0 0 Health an d Strength Maintenance $ 23,917.0 0 Medications $ 19,736.25 Projected Evaluations $ 14,585.0 0 Projected Therapeutic Modalities $ 127,692.0 0 To tal $ 12 ,0 73 ,8 6 8 .75 39 R. Doc. 886 at 9. R. Doc. 886 at 9. 41 See R. Doc. 855 at 143. 42 R. Doc. 80 3-2 at 6. 40 9 Because these figures represent the costs associated with Calvin’s plan of care for the rem ainder of his life, the Court m ust determ ine which costs are expected to be incurred prior to April 30 , 20 17, the date on which the jury concluded that Calvin will reach MMI an d the date on which OLB’s cure obligation ends. The Court does so by exam ining each category of Dr. Gorm an’s life-care plan, the frequency and duration of each item of treatm ent recom m ended by Dr. Gorm an, and the associated price per unit, ultim ately arriving at the costs that would likely be incurred by Calvin prior to April 30 , 20 17. The Court’s estim ations are based on a span of two (2) years from the date of the Court’s judgm ent until the date on which Calvin will reach MMI, which is longer than the actual tim e and, thus, is m ore favorable to Calvin. i. Facility Care This category estim ates the costs that would be incurred if Calvin were to return to Touchstone Neurorecovery Center, as recom m ended by Dr. Gorm an. According to Calvin, the costs associated with his return to Touchstone would be approxim ately $ 60 ,0 0 0 .0 0 . 43 The Court will, for purposes of this analysis, assum e that this $ 60 ,0 0 0 .0 0 would be recoverable from OLB under its cure obligation. ii. Financial Managem ent Dr. Gorm an recom m ends that Calvin obtain accountancy services to m anage his financial interests. “Cure involves the paym ent of therapeutic, m edical, and hospital expen ses not otherwise furnished to the seam an until the point of m axim um cure.” 44 Costs incurred to obtain accountancy services are not part of OLB’s obligation to pay cure, 43 R. Doc. 886 at 9. Barto v. Shore Const., L.L.C., 8 0 1 F.3d 465, 476 (5th Cir. 20 15) (citation s om itted) (internal quotation m arks om itted) (alterations om itted). 10 44 and the Court thus does not consider these costs in determ ining the value of Calvin’s award of future cure. iii. Future Medical Care Routine Dr. Gorm an recom m ends Calvin obtain the following m edical care in the future: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 2 Ye a rs (Cure) 1 tim e/ 3 years $ 4,50 0 .0 0 $ 4,50 0 .0 0 EMG/ NCV 1 tim e only $ 1,0 0 0 .0 0 $ 1,0 0 0 .0 0 Laboratory Testing 1 tim e/ year $ 115.0 0 $ 230 .0 0 MRI, Cervical Spine 1 tim e only $ 2,149.0 0 $ 2,149.0 0 MRI, Lum bar Spine 1 tim e only $ 2,247.0 0 $ 2,247.0 0 Internal Medicine 1 tim e/ year $ 175.0 0 $ 350 .0 0 Neurologist 2 tim es/ year $ 20 0 .0 0 $ 80 0 .0 0 Pain Specialist 4 tim es/ year $ 20 0 .0 0 $ 1,60 0 .0 0 Diagnostic Im aging To ta l $ 12 ,8 76 .0 0 iv. Health an d Strength Maintenance Assum ing that these costs would be included as cure, Dr. Gorm an’s Health and Strength Maintenance category in cludes the following costs: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 2 Ye a rs (Cure) Wellness Center Initial Fee 1 tim e only $ 10 0 .0 0 $ 10 0 .0 0 Wellness Center Monthly Fee 1 tim e/ m onth $ 51.0 0 $ 1,224.0 0 To ta l $ 1,3 2 4 .0 0 11 v. Medications Dr. Gorm an identifies the following costs associated with m edications: Ite m / Se rvice Current Medications Fre qu e n cy Co s t Pe r U n it Co s t Ove r 2 Ye a rs (Cure) 1 tim e/ m onth $ 41.55 $ 997.20 To ta l $ 9 9 7.2 0 vi. Projected Evaluations The following projected evaluations are recom m ended: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 2 Ye a rs (Cure) Internal Medicine Evaluation 1 tim e only $ 30 0 .0 0 $ 30 0 .0 0 Neurology Evaluation 1 tim e only $ 495.0 0 $ 495.0 0 Neuropsychological Testing 1 tim e only $ 1,50 0 .0 0 $ 1,50 0 .0 0 Occupational Therapy Evaluation Pain Specialist Evaluation 1 tim e/ year $ 20 0 .0 0 $ 40 0 .0 0 1 tim e only $ 350 .0 0 $ 350 .0 0 Physical Therapy Evaluation 1 tim e only $ 180 .0 0 $ 180 .0 0 Psychiatric Evaluation 1 tim e only $ 2,50 0 .0 0 $ 2,50 0 .0 0 Psychotherapy Evaluation 1 tim e only $ 260 .0 0 $ 260 .0 0 Speech Therapy Evaluation 2 tim es only $ 50 0 .0 0 $ 1,0 0 0 .0 0 To ta l $ 6 ,9 8 5.0 0 12 vii. Projected Therapeutic Modalities The following projected therapeutic m odalities are recom m ended: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 2 Ye a rs (Cure) Occupational Therapy 1 tim e/ year $ 1,0 20 .0 0 $ 2,0 40 .0 0 Physical Therapy 1 tim e/ year $ 960 .0 0 $ 1,920 .0 0 Speech Therapy 1 tim e/ year $ 68 8.0 0 $ 1,376.0 0 Psychiatrist 4 tim es/ year $ 180 .0 0 $ 1,440 .0 0 Psychiatrist (again) 2 tim es/ year $ 180 .0 0 $ 720 .0 0 Psychotherapy 1 tim e/ week $ 120 .0 0 $ 12,480 .0 0 2 tim es/ m onth $ 120 .0 0 $ 5,760 .0 0 Psychotherapy (again) To ta l $ 2 5,73 6 .0 0 Based on the foregoing calculations, which are based on the various potential m edical expenses listed in Dr. Gorm an’s life-care plan for Calvin Howard over the next two years, the Court finds, for purposes of this Rule 68 analysis only, that a reasonable estim ate of the value of Calvin’s future cure award is $ 139,542.67, as reflected below: Cate go ry 2 ye ar to tal: Travel to and from appointm ents 45 $ 31,624.47 Facility Care $ 60 ,0 0 0 .0 0 Financial Managem ent $0 Future Medical Care Routine $ 12,876.0 0 45 The Court takes no position on whether these expenses are recoverable as cure but includes them here for purposes of argum ent. 13 Health an d Strength Maintenance Medications $ 1,324.0 0 $ 997.20 Projected Evaluations $ 6,985.0 0 Projected Therapeutic Modalities $ 25,736.0 0 To tal $ 13 9 ,54 2 .6 7 The jury awarded Calvin dam ages for future m edical expenses in the am ount of $ 50 ,0 0 0 .0 0 . OLB is entitled to an offset in that am ount against Calvin’s future cure award because the law does not perm it double recovery. After deducting $ 50 ,0 0 0 .0 0 , a reasonable estim ate of the value of Calvin’s future cure award through April 30 , 20 17, is $ 8 9,542.67. This figure, when added to the dam ages awarded Calvin, 50 % of his pre-offer costs, an d Calvin’s estim ate of the value of his m aintenance award, brings Calvin’s total recovery in this m atter to $ 780 ,155.15 46 : Dam ages $ 652,420 .0 0 Pre-offer costs $ 23,317.48 Maintenance $ 14,875.0 0 Cure $ 89,542.67 To tal ( w ith cu re ) $ 78 0 ,15 5.15 At the end of the day, having awarded 50 % of Calvin’s estim ated value of his preoffer costs and his estim ated value of his future m aintenance award, and having been very generous in estim ating the value of Calvin’s future cure award, the Court finds that 46 The Court notes that this figure is likely m uch larger than what Calvin will actually incur as cure prior to April 30 , 20 17, given the m any benefits of the doubt the Court has afforded Calvin . 14 Calvin’s final recovery was less than OLB’s $ 875,0 0 0 .0 0 offer of judgm ent. Therefore, although Calvin, as a prevailing party, m ay recover 50 % of his pre-offer costs from OLB under Rule 54(d), Calvin m ust pay OLB’s post-offer costs pursuant to Rule 68(d). b. Raym ond Howard Also on J anuary 8, 20 16, OLB m ade an offer of judgm ent to Raym ond Howard in the am ount of $ 50 0 ,0 0 0 .0 0 . 47 Sim ilar to OLB’s offer to Calvin, OLB’s offer of judgm ent to Raym ond stated, in part, that: Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Offshore Liftboats offers to allow Raym ond Howard to take judgm ent against it as to the claim s asserted by Raym ond Howard in the above captioned m atter in the total sum of $ 50 0 ,0 0 0 .0 0 . This offer of judgm ent is intended to resolve all of Raym ond Howard’s claim s in this action, including without lim itation, any and all claim s for com pensatory dam ages, statutory dam ages, attorneys fees, litigation expenses, and costs of suit. Like Calvin, Raym ond did not accept OLB’s offer of judgm ent. The jury returned a verdict awarding Raym ond dam ages in the total am ount of $ 820 ,0 0 0 .0 0 , 48 for which OLB was found to be 20 % responsible. 49 The jury also found that, with respect to Raym ond’s claim s for m aintenance and cure under the General Maritim e Law, Raym on d would reach m axim um m edical im provem ent (“MMI”) on Septem ber 30 , 20 16. 50 The jury’s verdict becam e the judgm ent of the Court on March 23, 20 16. 51 OLB’s 20 % of Raym ond’s dam ages award, as reflected in the judgm ent, am ounts to $ 164,0 0 0 .0 0 , which is clearly less than OLB’s $ 50 0 ,0 0 0 .0 0 offer of judgm ent to 47 R. Doc. 875-9. R. Doc. 8 29 at 9 (Physical pain and sufferin g and loss of enjoym ent of life in the past ($ 150 ,0 0 0 ); Physical pain and sufferin g and loss of en joym ent of life in the future ($ 25,0 0 0 ); Men tal anguish in the past ($ 27,50 0 ); Mental anguish in the future ($ 30 0 ,0 0 0 ); Loss of earn in g capacity, including the value of frin ge benefits, in the past ($ 290 ,0 0 0 ); Loss of earnin g capacity, includin g the value of fringe benefits, in the future ($ 15,0 0 0 ); and Medical expenses in the future ($ 12,50 0 )). 49 R. Doc. 829 at 7. 50 R. Doc. 829 at 10 . 51 R. Doc. 854. 15 48 Raym ond. As with Calvin, however, the Rule 68 analysis does not end here. The Court m ust add the other am ounts to which Raym ond is entitled, such as (1) Raym ond’s preoffer of judgm ent costs, and (2) the future m aintenance-and-cure to which Raym on d is entitled until Septem ber 30 , 20 16, to determ ine whether the am ount reflected in the judgm ent is less than the offer of judgm ent. Unlike Calvin, however, Raym ond has not separated his costs into pre-offer and post-offer and has not provided a specific value for his future m aintenance-and-cure award. For purposes of the present analysis, the Court will use the total am ount of costs provided by Raym ond and will calculate Raym on d’s m aintenance award: Dam ages $ 164,0 0 0 .0 0 Pre-offer costs 52 $ 158 ,440 .92 Maintenance To tal ( w ith o u t cu re ) $ 7,455.0 0 $ 3 2 9 ,8 9 5.9 2 As explained with respect to Calvin, the Court has wide discretion to award to the prevailing party the sum of its pre-offer costs or to award a percentage of the party’s preoffer costs. 53 The Fifth Circuit has stated, specifically, that “Rule 54(d) gives the district court the necessary discretion to tax costs against the party who should equitably bear them .”54 In this case, OLB was found to be only 20 % at fault. Moreover, Raym on d was only partially successful on his claim s against OLB. For these reasons, the Court exercises its discretion and will m ake only a partial award of costs to Raym on d, awarding him 50 % 52 As explained in fra, the Court uses the total-cost figure alleged by Raym ond, without respect to whether pre-offer of judgm ent or post-offer, for purposes of this analysis. 53 See, e.g., W eiser v. Horace Mann Ins. Co., No. 0 6-90 8 0 , 20 0 9 WL 5194972, at *3 (E.D. La. May 15, 20 0 9); see also Breeland v. Hide-A-W ay Lake, IN c., 585 F.2d 716, 722 (5th Cir. 1978) (“It is well established that the district court enjoys discretion in determ in in g who shall bear the costs of litigation and how m uch of the costs shall be apportion ed to a taxed party.”). 54 Johnston, 80 3 F.2d at 870 – 71. See also Pacheco v. Mineta, 448 F.3d 783, 793– 94 (5th Cir. 20 0 6). 16 of his pre-offer costs. For purposes of this analysis only, the Court will use 50 % of Raym ond’s total costs, which is $ 79,220 .46. As noted above, the jury found that Raym ond will reach MMI on Septem ber 30 , 20 16. The effect of the jury’s MMI finding is that OLB is obligated, until Septem ber 30 , 20 16, to pay any cure expenses actually incurred by Raym ond and to pay Raym ond m aintenance at the rate of $ 35.0 0 per day. With respect to m aintenance, Raym ond m akes no representation of what the value of his m aintenance award is. 55 Neither does OLB take a position on the value of Raym ond’s m aintenance award. The Court has calculated a reasonable estim ate of this award by m ultiplying the approved rate of m aintenan ce, $ 35.0 0 per day, by 213 days—the num ber of days in between March 1, 20 16, and Septem ber 30 , 20 16, the date on which the jury concluded Raym ond would reach MMI. 56 This figure, which totals $ 7,455.0 0 , is reflected in the chart above. With respect to cure, Raym ond is entitled to receive cure paym en ts for m edical expen ses that he actually incurs prior to reaching MMI. 57 For present purposes, to determ ine whether the value of Raym ond’s final award is less than or exceeds OLB’s Rule 68 offer of judgm ent, the Court will m ake a realistic assessm ent of the value of Raym ond’s future cure award. 58 To calculate the value of Raym ond’s cure expen ses through Septem ber 30 , 20 16, the Court will also look to the testim ony of Dr. Cornelius Gorm an, who created a life-care plan for Raym ond separate and apart from the life-care plan he prepared for Calvin. 59 Dr. Gorm an predicted that Raym ond’s “plan of care,” for the 55 R. Doc. 886 at 7. R. Doc. 886 at 7. 57 See, e.g., Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 20 0 2) (“The duty to provide cure encom passes . . . the obligation to reim burse m edical expenses actually incurred.”) (em phasis added). 58 See, e.g., 12 Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 30 0 6.1, 150 – 51 (3d ed., 20 0 4). 59 See R. Doc. 855 at 143. 17 56 rem ain der of his life, would cost approxim ately $ 930 ,0 44.20 . 60 According to Dr. Gorm an, Raym ond’s plan of care is broken down as follows: Durable Medical Item s $ 160 .0 0 Financial Managem ent $ 238,50 0 .0 0 Future Medical Care Routine $ 178,60 3.50 Health an d Strength Maintenance $ 27,0 30 .0 0 Hom e Care $ 53,0 0 0 .0 0 Medications $ 167,951.70 Projected Evaluations $ 28,259.0 0 Projected Therapeutic Modalities $ 236,540 .0 0 To tal $ 9 3 0 ,0 4 4 .2 0 As with Calvin, because these figures are the costs associated with Raym ond’s plan of care for the rem ain der of his life, the Court m ust determ ine which costs are expected to be incurred prior to Septem ber 30 , 20 16, the date on which the jury concluded that Raym ond will reach MMI and the date on which OLB’s cure obligation ends. The Court does so by exam ining each category of Dr. Gorm an’s life-care plan, the frequency and duration of each item of treatm ent recom m ended by Dr. Gorm an, and the associated price per unit, ultim ately arriving at the costs that would likely be incurred by Raym ond prior to Septem ber 30 , 20 16. The Court’s estim ations are based on a span of one (1) year from the date of the Court’s judgm ent until the date on which Raym ond will reach MMI, which is slightly longer than the actual tim e and, thus, is m ore favorable to Raym ond. 60 R. Doc. 80 3-2 at 6. 18 i. Durable Medical Item s This category includes only the one-tim e cost of a TENS unit in the am ount of $ 160 .0 0 . The Court includes this cost, for purposes of argum ent, in its valuation of Raym ond’s future cure award. ii. Financial Managem ent Dr. Gorm an recom m ends that Raym ond obtain accountancy services to m anage his finan cial interests. “Cure involves the paym ent of therapeutic, m edical, and hospital expen ses not otherwise furnished to the seam an until the point of m axim um cure.”61 Costs incurred to obtain accountancy services are not part of OLB’s obligation to pay cure, and the Court thus does not consider these costs in determ ining the value of Raym ond’s award of future cure. iii. Future Medical Care Routine In this category, Dr. Gorm an recom m ends that Raym ond obtain the following m edical care in the future: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 1 Ye a r (Cure) 1 tim e/ 4 years $ 6,0 0 0 .0 0 $ 6,0 0 0 .0 0 EMG/ NCV 1 tim e only $ 50 0 .0 0 $ 50 0 .0 0 Laboratory Testing 1 tim e/ year $ 115.0 0 $ 115.0 0 MRI, Brain 1 tim e only $ 2,370 .0 0 $ 2,370 .0 0 MRI, Cervical Spine 1 tim e only $ 2,149.0 0 $ 2,149.0 0 MRI, Lum bar Spine 1 tim e only $ 2,247.0 0 $ 2,247.0 0 Urine Drug Screening 1 tim e only $ 212.50 $ 212.50 Diagnostic Im aging 61 Barto v. Shore Const., L.L.C., 80 1 F.3d 465, 476 (5th Cir. 20 15) (citations om itted) (internal quotation m arks om itted) (alterations om itted). 19 Urine Drug Screening (again) 4 tim es/ year $ 212.50 $ 850 .0 0 Internal Medicine 1 tim e/ year $ 175.0 0 $ 175.0 0 Neurologist 2 tim es/ year $ 20 0 .0 0 $ 40 0 .0 0 Physical Medicine & Rehabilitation 4 tim es/ year $ 20 0 .0 0 $ 80 0 .0 0 To ta l $ 15 ,8 18 .50 iv. Health an d Strength Maintenance Assum ing that these costs would be included as cure, Dr. Gorm an’s Health and Strength Maintenance category in cludes the following costs: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 1 Ye a r (Cure) Wellness Center Initial Fee 1 tim e only $ 10 0 .0 0 $ 10 0 .0 0 Wellness Center Monthly Fee 1 tim e/ m onth $ 51.0 0 $ 612.0 0 To ta l $ 712 .0 0 v. Hom e Care Dr. Gorm an identifies the following costs associated with hom e care: Ite m / Se rvice Hom e Man agem ent Fre qu e n cy Co s t Pe r U n it Co s t Ove r 1 Ye a r (Cure) 1 tim e/ m onth $ 10 0 .0 0 $ 1,20 0 .0 0 To ta l $ 1,2 0 0 .0 0 vi. Medications Dr. Gorm an identifies the following costs associated with m edications: 20 Ite m / Se rvice Current Medications Fre qu e n cy Co s t Pe r U n it Co s t Ove r 1 Ye a r (Cure) 1 tim e/ m onth $ 316.89 $ 3,80 2.68 To ta l $ 3 ,8 0 2 .6 8 vii. Projected Evaluations The following projected evaluations are recom m ended: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 1 Ye a r (Cure) Durable Medical Equipm ent Evaluation 1 tim e only $ 144.0 0 $ 144.0 0 Fam ily Therapy Evaluation 1 tim e only $ 260 .0 0 $ 260 .0 0 Internal Medicine Evaluation 1 tim e only $ 30 0 .0 0 $ 30 0 .0 0 Neurology Evaluation 1 tim e only $ 495.0 0 $ 495.0 0 Neuropsychological Testing 1 tim e only $ 1,50 0 .0 0 $ 1,50 0 .0 0 Occupational Therapy Evaluation 1 tim e/ year $ 20 0 .0 0 $ 20 0 .0 0 Physical Medicine & Rehabilitation Evaluation 1 tim e only $ 1,50 0 .0 0 $ 1,50 0 .0 0 Physical Therapy Evaluation 1 tim e/ year $ 180 .0 0 $ 180 .0 0 Psychological Evaluation 1 tim e only $ 260 .0 0 $ 260 .0 0 Sleep Medicin e Specialist Evaluation 1 tim e only $ 350 .0 0 $ 350 .0 0 Speech/ Cognitive Therapy Evaluation 1 tim e/ year $ 30 0 .0 0 $ 30 0 .0 0 21 Spine Specialist Evaluation 1 tim e only $ 350 .0 0 $ 350 .0 0 Vocational Rehabilitation 1 tim e only $ 4,50 0 .0 0 $ 4,50 0 .0 0 To ta l $ 10 ,3 3 9 .0 0 viii. Projected Therapeutic Modalities The following projected therapeutic m odalities are recom m ended: Ite m / Se rvice Fre qu e n cy Co s t Pe r U n it Co s t Ove r 1 Ye a r (Cure) Cervical Epidural Steroid Injections 3 tim es only $ 3,30 0 .0 0 $ 3,30 0 .0 0 Occupational Therapy 1 tim e/ year $ 2,0 40 .0 0 $ 2,0 40 .0 0 Physical Therapy 1 tim e/ year $ 1,940 .0 0 $ 1,940 .0 0 Lum bar Epidural Steroid Injections 3 tim es only $ 2,50 0 .0 0 $ 2,50 0 .0 0 Speech/ Cognitive Therapy 1 tim e/ year $ 688.0 0 $ 688.0 0 Psychotherapy 1 tim e/ week $ 120 .0 0 $ 6,240 .0 0 Psychotherapy (again) 1 tim e/ m onth $ 120 .0 0 $ 1,440 .0 0 Psychotherapy (again) 4 tim es/ year $ 120 .0 0 $ 480 .0 0 Psychotherapy (again) 2 tim es/ year $ 120 .0 0 $ 240 .0 0 Psychiatrist 4 tim es/ year $ 180 .0 0 $ 720 .0 0 Psychiatrist (again) 2 tim es/ year $ 180 .0 0 $ 360 .0 0 To ta l $ 19 ,9 4 8 .0 0 Based on the foregoing calculations, which are based on the various potential m edical expenses listed Dr. Gorm an’s life-care plan for Raym ond Howard, the Court 22 finds, for purposes of this Rule 68 analysis only, that a reasonable estim ate of the value of the Raym ond’s future cure award is $ 51,980 .18 through Septem ber 30 , 20 16, as reflected in the chart below: Cate go ry Durable Medical Item s Financial Managem ent 1 ye ar to tal: $ 160 .0 0 $0 Future Medical Care Routine $ 15,818 .50 Health an d Strength Maintenance $ 712.0 0 Hom e Care $ 1,20 0 .0 0 Medications $ 3,80 2.68 Projected Evaluations $ 10 ,339.0 0 Projected Therapeutic Modalities $ 19,948.0 0 To tal $ 51,9 8 0 .18 The jury awarded Raym ond dam ages for future m edical expenses in the am ount of $ 12,50 0 .0 0 , and OLB is entitled to an offset in that am ount against Raym ond’s future cure award because the law does not perm it double recovery. After deducting $ 12,50 0 .0 0 , a reasonable estim ate of the value of Raym ond’s future cure award is $ 39,480 .18 through Septem ber 30 , 20 16. This figure, when added to the dam ages awarded Raym ond, 50 % of his “pre-offer costs,” and the Court’s estim ate of the value of Raym ond’s m aintenance award, brings Raym ond’s total recovery in this m atter to $ 290 ,155.64 62 : 62 The Court notes, m oreover, that this figure is likely m uch larger than what Raym ond will actually incur as cure prior to Septem ber 30 , 20 16, given the m any benefits of the doubt the Court has afforded Raym ond. 23 Dam ages $ 164,0 0 0 .0 0 Pre-offer costs 63 $ 79,220 .46 Cure $ 39,480 .18 Maintenance $ 7,455.0 0 To tal ( w ith cu re ) $ 2 9 0 ,15 5.6 4 At the end of the day, having estim ated the value of Raym ond’s pre-offer costs and future m aintenance award, and having been very gen erous in estim ating the value of Raym ond’s future cure award, the Court finds that Raym ond’s final recovery was less than OLB’s $ 50 0 ,0 0 0 .0 0 offer of judgm ent. Therefore, although Raym ond, as a prevailing party, m ay recover his pre-offer costs from OLB under Rule 54(d), Raym on d m ust pay OLB’s post-offer costs pursuant to Rule 68(d). CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otions to tax costs 64 considered by the Court herein are GRAN TED IN PART. Plaintiffs Raym ond Howard and Calvin Howard are the prevailing parties in this action and, as a result, are entitled to recover from OLB 50 % of their pre-offer costs under Rule 54(d). Pursuant to Rule 68(d), OLB is entitled to recover its post-offer costs from Plaintiffs. IT IS FU RTH ER ORD ERED that this m atter is referred to the office of the Clerk of Court for the taxation of costs in accordance with this ruling. N e w Orle a n s , Lo u is ian a, th is 2 4 th d ay o f Ju n e , 2 0 16 . _______________________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 63 As explain ed infra, the Court uses the total-cost figure alleged by Raym ond, without respect to whether pre-offer of judgm ent or post-offer, for purposes of this analysis. 64 R. Docs. 875, 877, 878 . 24
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