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Court costs not part of med-mal cap

A med-mal plaintiff can tack on court costs to his $1.8 million jury award, a Richmond federal court says.

U.S. District Judge Robert Payne rejected a surgeon’s claim that paying his former patient $2,706.88 in costs would bump the award beyond Virginia’s statutory cap.

Plaintiff Wendell Waggener sued Dr. Steven J. Oltermann and his employer, Northern Neck Surgical Services, alleging that Oltermann failed to timely diagnose a colonic obstruction and perform emergency surgery. The jury returned a $2 million verdict, which the court reduced to $1.8 under Va. Code § 8.01-581.15.

The defendants objected to Waggener’s request for an award of costs, arguing that Virginia’s statutory damage cap kept the federal court from taxing costs pursuant to Fed. R. Civ. P. 54(d), because the judgment then would exceed the cap.

Payne said that no matter how the issue has been presented, federal courts uniformly have held that taxation of costs is a matter of federal procedure, not state substantive law.

Neither Boyd v. Bulala, nor other federal cases cited by the defendants address the administrative matter of taxation of costs, Payne said, and Code § 8.01-581.15, by its terms, caps only the amount of the “verdict.”

The challenge to costs was a new one for the plaintiff’s attorney, Richmond lawyer Jonathan M. Petty, who said he was unable to find any opinions in federal or state court on this point.
By Deborah Elkins

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