
    LEE v. PELFREY et al.  LEE v. LLOYD. 
    Court of Common Pleas of Ohio, Montgomery County.
    Nos. 94-2352 and 94-2356.
    Decided June 27, 1996.
    
      
      William T. Wuliger, for plaintiff Ramona Lee.
    
      Paul B. Roderer, for defendants Christopher Pelfrey and James Pelfrey.
    
      Robert J. Janes, for defendant William Arthur Lloyd.
   Jeffrey E. Froelich, Judge.

If Charles Dickens were to have written about personal injury law rather than probate law in Bleak House, he might have had these cases in mind. The various twists and turns these cases (and their predecessors since these are refilings) have taken are Byzantine at best and obfuscatory at worst. The quagmire was made worse by the plaintiff’s counsel’s view of insurance companies and their counsel as Machiavellian, parsimonious forces of darkness and defense counsel’s view of the plaintiff and her counsel as unreasonable, overly litigious, and hyperbolic whiners. The court finds neither position to be accurate and in fact commends the attorneys on maintaining a level of professionalism despite the ever-present specter of acrimony.

On March 4, 1996, defendant Christopher Pelfrey filed a motion for sanctions pursuant to Civ.R. 11. Civ.R. 11 provides, inter alia, for the award of expenses and reasonable attorney fees for its “willful violation.” The rule requires that the signature of the attorney constitutes a certificate by that attorney that “to the best of the attorney’s * * * knowledge, information, and belief, there is good ground to support [the motion]; and that it is not interposed for delay.” The defendant contends that the plaintiff submitted an “ungrounded motion for prejudgment interest and corresponding discovery request.” The court finds that the plaintiffs attorney had a good faith belief that there were good grounds to support his motion and that there was no willful violation of Civ.R. 11. Cf. Kemp, Schaeffer & Rowe Co., L.P.A. v. Frecker (1990), 70 Ohio App.3d 493, 591 N.E.2d 402. Therefore, the defendant’s motion is denied.

The defendants Pelfrey as well as the plaintiff have filed motions for costs.

Civ.R. 54(D) states as follows:

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

The first question, therefore, is “who is the ‘prevailing party?” Although these cases involve admitted liability, the questions of proximate cause and the amount of damages, if any, were vigorously contested. The plaintiff is the “prevailing party.” In a somewhat analogous case, the United States Supreme Court analyzed who should be considered a “prevailing party” in cases where Congress authorizes an award of fees to a prevailing party. In Hensley v. Eckerhart (1983), 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40, the court determined that the plaintiff may be considered the prevailing party if it succeeded on any significant issue in litigation which achieved some of the benefit the party sought in bringing the suit. In the case before the court, the plaintiff succeeded in establishing proximate cause and in receiving damages. See, also, for example, Brinn v. Cutter (Dec. 9, 1993), Cuyahoga App. No. 63669, unreported 1993 WL 515636 (court found plaintiffs in negligence case were the prevailing party when they were awarded only ten dollars damages); Wainscott v. Frauenknecht (Aug. 14, 1995), Warren App. No. CA94-11-094, unreported, 1995 WL 476202 (plaintiff who refused a $45,000 settlement offer and received a $3,200 verdict was determined to be a prevailing party); Hagemeyer v. Sadowski (1993), 86 Ohio App.3d 563, 621 N.E.2d 707; Yetzer v. Henderson (June 4,1981), Richland App. No. CA-1967, unreported, 1981 WL 6293 (“ ‘[t]he prevailing party is one in whose favor the decision or verdict is rendered and judgment entered.’ ”); Woyma v. Johnson (Nov. 16, 1994), Lake App. No. 94-L-004, unreported, 1994 WL 638493; Zacka- roff v. Koch Transfer Co. (C.A. 6, 1988), 862 F.2d 1263; Farrar v. Hobby (1992), 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494. Since defendant William Arthur Lloyd was not a prevailing party, his motion is denied.

The question remaining is “what are ‘costs’?” “ ‘The subject of costs is one entirely of statutory allowance and control.’ ” Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 51, 23 O.O.3d 88, 89, 430 N.E.2d 925, 926. This principle has been reaffirmed in such cases as Muze v. Mayfield (1991), 61 Ohio St.3d 173, 573 N.E.2d 1078; Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 597 N.E.2d 153; Gold v. Orr Felt Co. (1985), 21 Ohio App.3d 214, 21 OBR 228, 487 N.E.2d 347.

R.C. 2303.20 specifies each cost the clerk of the common pleas court shall charge. Other statutes, for example, R.C. 2301.21 and 2303.22, and R.C. Chapter 2335, provide additional expenses to be taxed as costs.

The plaintiff has requested numerous items as costs, and the court will address them individually:

1. The reasonable expenses for recording the testimony of Dr. Marvin Wazney and Richard Shimola on videotape shall be awardable as costs pursuant to C.P.Sup.R. 12(D)(1)(b). Coleman v. Jagniszcak (1995), 104 Ohio App.3d 413, 662 N.E.2d 91. The rule specifically does not allow the expense of the videotape as a material or its copying. Therefore, the plaintiff is awarded $415 as costs.

2. The transcripts of videotaped depositions of Dr. Wazney and Shimola are not awarded as costs. Carr v. Lunney (1995), 104 Ohio App.3d 139, 661 N.E.2d 246. The suggestion of the plaintiff that Montgomery C.P.Loc.R. 1.27(1) requires the filing of a transcript and is thus reimbursable was indirectly addressed, and rejected, in Vance, 64 Ohio St.3d at 555-556, 597 N.E.2d at 156-157. In Vance, the Supreme Court invalidated a local rule that defined “costs” in a manner inconsistent with Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 50-51, 23 O.O.3d 88, 89, 430 N.E.2d 925, 926, which defined “costs” as “ ‘being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action * * * and which the statutes authorize to be taxed and included in the judgment.’ ”

3. The transcript of the testimony of Dr. Robert Shaffer, a treating expert of the plaintiff, was introduced by a deposition. This expense is not defined as a “cost” in any statute or rule.

4. Similarly, the transcripts of the depositions of the defendants and their witnesses are not allowable as “costs.”

5. & 6. The plaintiff has requested the expenses of the transcripts of the depositions of the plaintiff and her witnesses as well as the defendants’ trial depositions of their witnesses. While this no doubt aided in the preparation of the plaintiffs case, it was an expense incurred by both parties and, absent a statute or rule to the contrary, it is not awardable.

7. The plaintiff has requested $323 for the court reporters’ serving subpoenas and filing transcripts and videotapes. The request includes $30 for “filming videotaped trial deposition of Richard Shimola.” There is no substantiation for this expense and, to the extent it was incurred, it is included in item 1, above. Otherwise, these costs are provided for by statute. See, e.g., R.C. 2319.27 and R.C. Chapter 2335. The plaintiff is awarded $297 as costs.

8. The costs for the plaintiff to obtain her own medical records, the costs of the plaintiffs computer legal research, and the witness fees paid by the plaintiff for discovery depositions of the defendants’ experts are not costs which will be awarded to the plaintiff. The plaintiff has also requested expenses associated with the deposition of Dr. Shumrick on October 24, 1995; this matter is addressed below.

Let it suffice to say that absent a legislative or Supreme Court mandate to the contrary, Ohio has not adopted a “loser pays” law. “[AJuthority to bring ‘litigating expenses’ within the ambit of ‘costs’ must come from the Ohio Supreme Court, the author of the Ohio Rules of Civil Procedure.” Skaggs v. Lima Mem. Hosp. (Sept. 4, 1990), Allen App. No. 1-88-47, unreported, 1990 WL 131961 (with three judges of the Second Appellate District sitting by assignment), affirmed in (1991), 62 Ohio St.3d 296, 581 N.E.2d 1085. “ ‘[C]osts’ are not synonymous with [litigation] expenses unless expressly made so by statute.” Benda v. Fana (1967), 10 Ohio St.2d 259, 263, 39 O.O.2d 410, 413, 227 N.E.2d 197, 201. Litigation is often unfairly and inequitably extremely expensive, but Ohio takes the position, absent extraordinary circumstances which the court does not find to be present in this case, that, except as specifically provided in a rule or statute, the parties should bear their individual expenses.

In a previous order, this court ruled that the defendants shall pay the costs of further cross-examination of Dr. Shumrick, and such further cross-examination did take place on October 24,1995. The court awards $667.25 (which includes $33 for a copy of the deposition videotape) as expenses which the plaintiff would not have had to incur but for this October deposition. Further, the court awards $98 that was incurred by the plaintiff to obtain the deposition of Dr. Shumrick. To the extent that this award appears inconsistent with other holdings of this decision, it is appropriate pursuant to the September 28, 1995 order and Civ.R. 37.

Moreover, if this court has erred concerning what is an allowable “cost,” the court, in its discretion, directs that only those expenses awarded in this decision shall be allowed to the plaintiff as the prevailing party. Civ.R. 54(D).

The next matter before the court is the motion of the plaintiff for an award of prejudgment interest pursuant to R.C. 1343.03(C). Both parties have more then adequately briefed this issue in light of the Supreme Court’s holding in Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331. Neither a legal exegesis nor a detailed factual description of the various communications and negotiations of the lawyers is necessary for the this court to find that there is insufficient evidence to determine both that the plaintiff made a good faith effort and that the defendants did not make good faith efforts to settle. This is not to hold that one or two and/or all parties did or did not make good faith efforts to settle, but rather that there is not sufficient evidence to establish that one or two and/or all parties failed to make a good faith effort to settle the case. Therefore, the plaintiffs motion for prejudgment interest is denied.

Most recently, the plaintiff has filed a motion requiring the defendants to return all medical records concerning the plaintiff to the plaintiffs counsel or, in the alternative, to destroy all such medical records. The court finds i/'this case is appealed (as in “if the sun rises in the east”) the contents of certain records may be relevant to the learned court above. Therefore, this motion is premature and to that extent is denied. However, the court is sensitive to the privacy concerns of the plaintiff and the fact that, other than legal issues surrounding this case, the defendants have no need for this information. Therefore, the defendants, their attorneys, agents, and representatives are ORDERED to segregate the medical records of the plaintiff (or the entire files) pending further litigation in these cases and not to copy, share, or divulge this information with any other persons or entities except as necessary to represent their interests in any appeal.

The plaintiff is ORDERED to prepare forthwith an entry and order consistent with this decision.

Judgment accordingly.  