#27068-rev&rem-DG

2015 S.D. 19


                           IN THE SUPREME COURT

                                    OF THE

                           STATE OF SOUTH DAKOTA

                                    * * * *

DONALD MCLAREN, in his capacity
as the personal representative of
the Estate of Karla McLaren,                  Plaintiff and Appellant,

            v.

WESLEY SUFFICOOL, D.O.,                       Defendant and Appellee.

                                    * * * *

                    APPEAL FROM THE CIRCUIT COURT
                   OF THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                    * * * *

                      HONORABLE CRAIG A. PFEIFLE
                               Judge

                                    * * * *

JAMES D. LEACH
Rapid City, South Dakota                           Attorney for plaintiff
                                                   and appellant.

LONNIE R. BRAUN
GREGORY J. BERNARD of
Thomas, Braun, Bernard & Burke, LLP
Rapid City, South Dakota                           Attorneys for defendant
                                                   and appellee.

                                    * * * *

                                                   CONSIDERED ON BRIEFS
                                                   ON NOVEMBER 17, 2014

                                                   OPINION FILED 04/08/2015
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GILBERTSON, Chief Justice

[¶1.]         The Estate of Karla McLaren (Estate) appeals an order denying

disbursements for video depositions in a medical malpractice action against Dr.

Wesley Sufficool. We reverse and remand.

                           Facts and Procedural History

[¶2.]         Estate brought a medical malpractice action against Dr. Sufficool in

connection with a surgery performed on Karla McLaren. During trial, Estate

showed portions of video depositions of Dr. Sufficool and of Karla’s treating

physician, Dr. Grant. The verdict was for Estate. Estate sought $2,135.26 in

disbursements for video depositions of Drs. Sufficool, Grant, and Fitzgibbons. 1 Dr.

Sufficool objected based upon the duplication of costs in producing both transcribed

and video depositions. A hearing was held. At the close of the hearing, the circuit

court granted Estate the transcript costs for the depositions, but not the

videographer or video costs. An order denying disbursements for the video

depositions was filed on March 3, 2014. Estate appeals. 2

                                         Issue

[¶3.]         Whether the circuit court abused its discretion in denying
              Estate disbursements for the video depositions.

[¶4.]         This Court “‘review[s] an award of disbursements under an abuse of

discretion standard.’” Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 32, 807


1.      Dr. Fitzgibbons was Dr. Sufficool’s expert.

2.      An order as to disbursements is separately appealable from the judgment.
        See Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 905-06 (S.D. 1994) (“An
        appeal may be taken from the judgment without appealing taxation of
        [disbursements] and an appeal from taxation of [disbursements] may be
        taken without appealing the judgment.”).
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N.W.2d 612, 621 (quoting Behrens v. Wedmore, 2005 S.D. 79, ¶ 69, 698 N.W.2d 555,

581). An abuse of discretion “is a fundamental error of judgment, a choice outside

the range of permissible choices, a decision, which, on full consideration, is arbitrary

or unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836

N.W.2d 611, 616 (quoting State v. Lemler, 2009 S.D. 86, ¶ 40, 774 N.W.2d 272, 286)

(internal quotation marks omitted). Estate argues that the circuit court abused its

discretion in denying its request for disbursements for the video depositions of Drs.

Sufficool, Grant, and Fitzgibbons.

[¶5.]         Estate asserts that videographer fees are similar to transcript and

court reporter fees and, therefore, disbursements for those fees may be granted

under SDCL 15-17-37:

              The prevailing party in a civil action or special proceeding
              may recover expenditures necessarily incurred in
              gathering and procuring evidence or bringing the matter
              to trial. Such expenditures include costs of telephonic
              hearings, costs of telephoto or fax charges, fees of
              witnesses, interpreters, translators, officers, printers,
              service of process, filing, expenses from telephone calls,
              copying, costs of original and copies of transcripts and
              reporter’s attendance fees, court appointed experts, and
              other similar expenses and charges. These expenditures
              are termed “disbursements” and are taxed pursuant to §
              15-6-54(d).

[¶6.]         “[E]xpense of taking depositions” is not listed under this statute as it

was under a previous version of the disbursements law. See DeHaven v. Hall, 2008

S.D. 57, ¶ 43, 753 N.W.2d 429, 442-43 (quoting SDCL 15-17-4 (1989)). 3 Moreover,



3.      DeHaven outlines the development of South Dakota law on disbursements,
        particularly since the statutes in this area were significantly revised in 1992.
                                                                     continued . . .
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this Court recognized a “restrictive interpretation” of the disbursements statute in

DeHaven, concluding:

             [T]he prevailing party in a civil action may recover
             necessary expenditures “incurred in gathering and
             procuring evidence or bringing the matter to trial” and
             “other similar expenses and charges” if these
             expenditures, expenses and charges are of the same
             general kind as the . . .


                    costs of telephone hearings, costs of telephoto
                    or fax charges, fees of witnesses,
                    interpreters, translators, officers, printer,
                    service of process, filing, expenses from
                    telephone calls, copying, costs of original and
                    copies of transcripts and reporter’s
                    attendance fees, court appointed experts[.]

2008 S.D. 57, ¶¶ 50-52, 753 N.W.2d at 444-45 (quoting SDCL 15-17-37).

[¶7.]        Although “expense of taking depositions” is not listed under SDCL 15-

17-37, “costs of original and copies of transcripts and reporter’s attendance fees” are

listed. Therefore, those aspects of deposition expenses are expressly covered by the

statute. Videographer fees for recording depositions are also not listed under the

statute. Thus, the question becomes whether such expenses are “of the same

general kind” as “costs of . . . transcripts and reporter’s attendance fees” for

depositions. Id.

[¶8.]        A similar question arose in Morrison v. Reichhold Chems., Inc., 97 F.3d

460 (11th Cir. 1996). In that case, the court considered whether video depositions


. . . continued
         DeHaven has subsequently been relied upon in Fix, 2011 S.D. 80, ¶ 33, 807
         N.W.2d at 621 and Hewitt v. Felderman, 2013 S.D. 91, ¶ 30, n.10, 841 N.W.2d
         258, 266 n.10.

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were a taxable cost under a statute allowing an award for “‘fees of the court reporter

for all or any part of the stenographic transcript necessarily obtained for use in the

case.’” Id. at 464 (quoting 28 U.S.C. § 1920(2)). 4 Noting that the federal rules (i.e.,

Fed. R. Civ. P. 29(1), 30(b)(2), and 30(b)(3)) permitted alternative means of taking

depositions, the court concluded:

              In view of Rule 29(1), which allows depositions to be
              recorded in any number of ways, the most logical
              conclusion is that “a videotaped deposition is more
              appropriately taxed as is any other deposition expense.”
              Jamison v. Cooper, 111 F.R.D. 350, 352 (N.D. Ga. 1986);
              see Commercial Credit Equip. Corp. v. Stamps, 920 F.2d
              1361, 1368 (7th Cir. 1990) (stating that “[v]ideotaped
              depositions are a necessary and time effective method of
              preserving witnesses’ time and allocating precious court
              and judicial time in this age of advanced court technology
              and over-crowded court calendars. We must not seem
              reluctant to adopt any and all time-saving methods that
              serve to improve our system of justice”).

Morrison, 97 F.3d at 465. 5

[¶9.]         The South Dakota Rules of Civil Procedure also provide for alternative

means of taking depositions. See SDCL 15-6-29 (permitting depositions to be taken

“in any manner” upon stipulation); SDCL 15-6-30(b)(4) (permitting depositions to be


4.      It is notable that in its review in Morrison, the Eleventh Circuit, similar to
        this Court in DeHaven, insisted on “strict adherence to the language of” the
        cost statutes that it was considering. 97 F.3d at 465.

5.      See also Cherry v. Champion International Corporation, 186 F.3d 442, 448-49
        (4th Cir. 1999) (“Even though [28 U.S.C. § 1920] does not make explicit
        mention of costs associated with videotaping a deposition, we agree with the
        Tenth Circuit’s conclusion that ‘section 1920(2) implicitly permits taxation of
        the costs of video depositions.’” (citing Tilton v. Capital Cities/ABC, Inc., 115
        F.3d 1471, 1477 (10th Cir. 1997); Morrison, 97 F.3d at 464-65; Fed. R. Civ. P.
        30(b)(2)).


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“recorded by sound, sound-and-visual, or stenographic [or non-stenographic] means

[.]”). Therefore, following the rationale of Morrison 6, we hold that videographer fees

for recording depositions are “of the same general kind” as “costs of . . . transcripts

and reporter’s attendance fees” for depositions. DeHaven, 2008 S.D. 57, ¶ 52, 753

N.W.2d at 445 (quoting SDCL 15-17-37). Accordingly, those fees may be awarded as

disbursements under SDCL 15-17-37 if they meet that statute’s other requirements.

[¶10.]         For expenses to be awarded as disbursements under SDCL 15-17-37,

they must be “necessarily incurred in gathering and procuring evidence or bringing

the matter to trial.” Further, even if expenses may be awarded as disbursements

under SDCL 15-17-37, other statutes “give considerable discretion in denying

recoverable disbursements[.]” DeHaven, 2008 S.D. 57, ¶ 52, 753 N.W.2d at 445

(citing Full House, Inc. v. Stell, 2002 S.D. 14, ¶ 25, 640 N.W.2d 61, 67). See also

Culhane v. Michels, 2000 S.D. 101, ¶ 33, 615 N.W.2d 580, 590 (“SDCL 15-17-52

allows a court to ‘limit the taxation of disbursements in the interests of justice.’”);

SDCL 15-6-54(d)(1) (“Except as otherwise provided by statute, costs and

disbursements, other than attorney’s fees, shall be allowed as of course to the

prevailing party unless the court otherwise directs.” (Emphasis added)).

[¶11.]         Estate argues that the video depositions were necessary for

impeachment purposes at trial and that the transcribed depositions were necessary



6.       Because the state rules on depositions are modeled after the federal rules,
         “decisions by federal courts interpreting and applying the federal rule[s]
         provide[ ] assistance in applying our state rule[s].” Kaiser v. University
         Physicians Clinic, 2006 S.D. 95, ¶ 38, 724 N.W.2d 186, 196 (citing Miller v
         Hernandez, 520 N.W.2d 266, 269 (S.D. 1994)).

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to make the video depositions usable. After a hearing on this issue, the circuit court

commented: “[M]y take is that the video portion of the depositions are taken for the

parties’ convenience, they’re not items that are necessary to bring the matter to

trial and, as a result, would not be considered to be items that would otherwise be

allowable under the statute[.]”

[¶12.]       The circuit court’s ambiguous oral comments on the issue of necessity

are insufficient to permit meaningful review of the issue on appeal. The circuit

court made no findings specific to the facts of this case and concluded that the

statute did not allow the recovery of disbursements for the video depositions. This

ruling makes sense in light of the fact that this case presents an issue of first

impression. However, in Morrison, the Eleventh Circuit Court of Appeals, after

similarly concluding that the case presented an issue of first impression, remanded

to the trial court “for further findings on the necessity of the video copying costs

that [the defendant] contends are taxable.” 97 F.3d at 465. Accordingly, we also

remand to allow the circuit court to make the same factual determination here.

[¶13.]       Reversed and remanded.

[¶14.]       ZINTER, SEVERSON, and WILBUR, Justices, and KONENKAMP,

Retired Justice, concur.

[¶15.]       KERN, Justice, not having been a member of the Court at the time this

action was assigned to the Court, did not participate.




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