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Freeman v. Caterpillar Industrial

July 30, 2007

LAMAR FREEMAN PLAINTIFF
v.
CATERPILLAR INDUSTRIAL, INC. DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER AWARDING COSTS

Before the Court is a Bill of Costs filed by Caterpillar Industrial, Inc. ("Caterpillar"). No objection to the request for costs has been filed. For the reasons stated below, the Court exercises its discretion to make a partial award of costs to Caterpillar.

I. BACKGROUND

On the fourth day of trial, June 8, 2007, Caterpillar obtained a jury verdict in its favor. The Court is very familiar with the facts and legal issues underlying this case by virtue of the numerous pleadings and issued raised by the parties. Many of the legal issues in the case were addressed during the summary judgment phase of the litigation. The Court ultimately rejected Caterpillar's bid for judgment as a matter of law, although the final ruling followed two rounds of briefing and an interim Order. Caterpillar also attempted, unsuccessfully, to exclude the Plaintiff's expert witness, Thomas Berry, from testifying at trial.

In the Court's view, this case was a liability case. There was no serious question about the extent of Mr. Freeman's injuries. The injuries Mr. Freeman sustained after being pinned against a metal bin by the Caterpillar forklift ended his working life and left him without the ability to support his family.

There was good reason initially to suspect the forklift as the cause of the accident. A forklift left running on level ground with the parking brake engaged would not be expected to exhibit spontaneous unmanned movement. During discovery and after experts had been retained, the parties discovered that the parking brake's neutralizing feature appeared to have been misassembled by someone other than Caterpillar. At trial, Plaintiff's expert Mr. Berry opined that the parking brake's failure was more likely than not the result of normal wear and tear foreseeable to Caterpillar and that the forklift should have been equipped with certain safety devices that would have prevented the accident. Caterpillar denied that the forklift was defective when it was manufactured in 1984 and it also raised the defenses of the intervening negligence of Nucor, Plaintiff's employer, as well as Plaintiff's own fault.

The jury interrogatories first presented Caterpillar's intervening cause defense. The jury found that Nucor failed to maintain the forklift properly, had misassembled the parking brake's neutralizing feature and also had failed to properly train Mr. Freeman to turn off the engine when leaving the forklift unattended. Because the jury concluded that Nucor's acts or omissions caused the Plaintiff's damages independently of any conduct on the part of Caterpillar, it was not called upon to determine whether the forklift was defectively designed or manufactured.*fn1

II. GOVERNING LAW

In most cases, costs are awarded to a prevailing party as a matter of course pursuant to Fed. R. Civ. P. 54(d)(1), which provides:

Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . .

The "costs" which may be awarded to a prevailing party under Rule 54(d) are enumerated by statute and include the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily ...


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