Mother sues for costs in daughter’s death
Lakisha Butler alleged damages suffered in conjunction with the illness and subsequent death of her daughter, Chela Victoria Butler. Butler sought review by the Louisiana medical review panel in April 2010. She named as defendants Dr. Richard Lebouef, Dr. Floyd A. Buras Jr., Dr. Louis Bevrotte, Dr. Neel Shah, Drs. Lebouef & Buras, AMC, and Children’s Hospital of New Orleans.
After the medical review panel found in favor of the defendants, Butler filed a petition for damages for wrongful death and survival action in April 2011 against all of the named defendants except Richard Lebouef (in his individual capacity). In January 2015, a jury found in favor of Neel Shah and Children’s Hospital, but found against Floyd A. Buras and Louis Bevrotte. The court adopted the jury verdict as the ruling of the court, finding Buras and Bevrotte and their insurer, Louisiana Mutual Medical Insurance Company, liable for the full limits under their respective policies.
On February 11, 2015, Butler filed a motion to tax costs, requesting that the trial court hold the defendants liable for reimbursement of $154,470.37 in litigation costs. To support her motion, Butler attached the sworn affidavit of her law firm’s administrator and a ledger of costs Butler paid. Butler averred that all costs should be awarded because of the “special nature of [her] case and medical malpractice cases, in general.”
The defendants filed an opposition to Butler’s motion to tax costs, claiming that: (1) Butler’s evidence to support her motion was inadequate; (2) statutory and jurisprudential law limit the extent to which a trial court may award costs; (3) in order for the costs to be taxable they must have been used at trial; (4) the ledger entries lacked specificity to determine the nature of the expenses and whether they should be properly awarded; and (5) many charges, in particular the expert fees, were excessive.
The hearing on the motion to tax costs was held in June 2015. Neither side submitted any additional testimony or evidence. The trial court advised the parties to discuss a resolution, absent which it would rule. Thereafter the court granted Butler’s motion to tax costs. The court stated that Butler, as the prevailing party, was entitled to the full amount of her costs, totaling $154,470.37, against the defendants. The defendants appealed.
On appeal, the defendants alleged that the trial court erred in taxing costs not authorized by statute or jurisprudence. The defendants specifically claimed that the trial court erred in awarding costs where (1) the court assessed costs without sufficient proof of evidence; (2) depositions were not introduced into evidence at trial; (3) expert witnesses did not testify at trial; (4) expert witnesses assisted in only trial consultation; (5) expert fees were excessive; and (6) itemization of expert fees lacked specificity.
The appellate court noted that Butler supplied the trial court with a rule to tax costs supported by an itemized list of expenditures. She also attached the firm administrator’s sworn affidavit attesting to the costs claimed and their accuracy. The record did not indicate that either the itemized lists of expenditures or the sworn affidavit were officially introduced into evidence at the hearing. Nevertheless, the court said, the documents were attached as exhibits to Butler’s motion, referenced by both parties in their pleadings, and relied on by both parties at the hearing. Additionally, the defendants on appeal did not assign as error any failure on Butler’s part to properly introduce into evidence the list of expenditures or the supporting affidavit. Moreover, the appellate court said, the trial court considered both exhibits when it ruled on Butler’s motion. Thus the trial court found there was sufficient proof of Butler’s costs. Consequently, the appellate court found no merit to the defendants’ argument.
The appellate court found that the record lacked sufficient evidence for it to reverse the trial court’s award of costs. Therefore the court found no abuse of discretion in the trial court’s adherence to state law by taxing all costs against the defendants. The judgment of the trial court was affirmed.
Butler vs. Louisiana Mutual Medical Insurance Company and Buras, Bevrotte, Lebouef & Buras, AMC, Shah, and Children’s Hospital of New Orleans-Court of Appeal of Louisiana, Fourth Circuit-May 25, 2016- No. 2015–CA–1191.
