IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT DADDIO, et al. : CIVIL ACTION

:

v. :

:

THE A.I. DUPONT HOSPITAL FOR :

CHILDREN OF THE NEMOURS :

FOUNDATION, et al. : NO. 05-441

MEMORANDUM

McLaughlin, J. August 12, 2011

This action arises from the death of the plaintiffs’

two year old son, Michael. This case was filed against ten

defendants on February 1, 2005. Eight of the defendants were

terminated by October of 2008. On August 21, 2009, the Court

granted summary judgment in favor of the two remaining defendants

— the Nemours Foundation and Dr. William I. Norwood. The two

defendants filed their bill of costs against the plaintiffs on

November 18, 2009. On November 24, 2010, the United States Court

of Appeals for the Third Circuit affirmed the grant of summary

judgment. On December 6, 2010, the defendants re-filed their

bill of costs against the plaintiffs, seeking $18,535.18. The

plaintiffs filed objections to the bill of costs. On June 1,

2011, the clerk taxed costs against the plaintiffs in the amount

of $15, 240.68.

On June 3, 2011, the plaintiffs filed a motion to

vacate the clerk’s taxation of costs. The plaintiffs argue that

Case 2:05-cv-00441-MAM Document 226 Filed 08/12/11 Page 1 of 15
the defendants are not entitled to the following costs: (1) pro

hac vice fee; (2) cost of producing transcripts; (3) witness

fees; (4) costs of photocopying and exemplifications; and (5)

photocopy costs of Mark D. Villanueva. The plaintiffs also 1

argue that the Clerk failed to consider their inability to pay

the costs.

The taxing of costs is governed by Fed. R. Civ. P.

54(d)(1), which provides in relevant part: 

Except when express provision therefore is

made either in a statute of the United States

or in these rules, costs other than

attorneys’ fees shall be allowed as of course

to the prevailing party unless the court

otherwise directs. . . . On motion served

within 5 days thereafter, the action of the

clerk may be reviewed by the court.

The Rule limits the reimbursable costs to those enumerated in 28

U.S.C. § 1920, specifically: 

1) Fees of the clerk and marshal; (2) Fees

for printed or electronically recorded

transcripts necessarily obtained for use in

the case; (3) Fees and disbursements for

printing and witnesses; (4) Fees for

exemplification and the costs of making

copies of any materials where the copies are

necessarily obtained for use in the case; (5)

Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries,

fees, expenses, and costs of special

interpretation services under section 1828 of

this title. 

 Mr. Villanueva was counsel for the Nemours Foundation 1

for the majority of the proceedings. 

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The Clerk of Court is charged with taxing costs, but

“the [district] court may review the clerk’s action.” Fed. R.

Civ. P. 54(d)(1). A district court’s review of the clerk's

determination of costs is de novo. In re Paoli R.R. Yard PCB

Litig., 221 F.3d 449, 461 (3d Cir. 2000). There is a “strong

presumption” that costs are to be awarded to the prevailing

party. Id. at 462. “Only if the losing party can introduce

evidence, and the district court can articulate reasons within

the bounds of its equitable power, should costs be reduced or

denied to the prevailing party.” Id. at 462-63, 468. Thus, if a

district court, within its discretion, denies or reduces a

prevailing party's award of costs, it must articulate its reasons

for doing so. In re Paoli, 221 F.3d at 468.

The Court will consider each objection lodged by the

plaintiffs seriatim.

A. Pro Hac Vice Fee

The plaintiffs claim that the defendants are not

entitled to the $40.00 pro hac vice fee for Mr. Hudgins. The

clerk disallowed the pro hac vice fee when it taxed costs in this

matter. The defendants concede that this cost is not taxable and

admit that they mistakenly included it in their calculation. 

This objection is moot. 

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B. Transcript Fees

The plaintiffs object to the inclusion of $7,061.76 in 2

transcript fees because the case was consolidated with twelve

others for discovery purposes. They argue that the costs of the

pre-trial deposition and hearing transcripts should be divided

evenly among the different cases. The defendants argue that the

award was proper and that only certain aspects of the case were

consolidated for discovery.

Transcript fees are recoverable where the transcripts

are “necessarily obtained for use in the case.” 28 U.S.C. § 1920

(2); see also Montgomery County v. Microvote, No. 97-6331 2004 WL

1087196 at *4–5 (E.D. Pa. 2004).

This case was resolved on a motion for summary judgment

by the defendants. In rendering its opinion on summary judgment,

the Court relied upon the deposition transcripts of Drs. Hannan

and Norwood, in addition to the transcripts from various pretrial hearings. See, e.g., Daddio v. A.I. duPont Hosp. for

Children, 650 F. Supp. 2d 387, 393–400, 405, 408 n. 18 (E.D. Pa.

2009). The transcripts were necessarily obtained for use in this

case. The case had a complex pre-trial procedural history that

The clerk calculated this figure based on (1) $1,503.00 2

in transcript fees from Mr. Villanueva; (2) $2,077.00 in court

report fees from Mr. Villanueva; and (3) $3,482.76 in transcript

fees. In calculating transcript fees, the clerk disallowed

$1,800.00 in expert witness fees. Aff. of Sarah Lynn Petrosky,

Ex. E., Daddio Docket 215; Id. at Ex. B. 

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spanned nearly four years with numerous pre-trial motions,

including multiple Daubert motions that relied on the pre-trial

testimony of expert witnesses. Given these facts, the

transcripts were reasonably necessary to the case and are

properly taxable.

The plaintiffs argue that the costs of the transcripts

should be divided by thirteen because this case was consolidated

with twelve others for various discovery issues. The plaintiffs 3

cite no authority for this proposition. Moreover, the cases were

not part of a class action, nor were they consolidated for trial.

Further, the defendants’ bill of costs already discounts the

costs of transcripts where there was an agreement to conduct

joint discovery. See Aff. of Sarah Lynn Petrosky, Daddio Docket

215, Ex. B. The plaintiffs have not made any specific objection

to these calculations. Accordingly, the transcript costs are all

properly taxable. 

C. Witness Fees

28 U.S.C. § 1920(3) specifically authorizes the clerk

to tax witness fees. This statute incorporates by reference

28 U.S.C. § 1821, which limits witness attendance fees to $40.00

 The parties agreed to conduct joint discovery to 3

reduce certain costs. However, neither party has specifically

alleged the extent of the agreement or what discovery costs would

be split. 

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per day. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 442 (1987). The plaintiffs object to the taxation of

witness fees in the amount of $160.00, arguing that the 4

witnesses’ testimony was relevant in the other twelve cases, thus

the fees should be reduced. This argument fails for the same

reason as the objection to the transcript fees. The witnesses

for whom the defendants seek fees are not the witnesses for whom

they concede shared discovery. Absent an allegation that there

was an agreement to share these specific costs, there is no

reason to divide the witness fees. Because the witnesses’

testimony was relevant in this case, their fees are properly

taxable. 

D. Copying

The plaintiffs also contest the taxation of costs

associated with photocopying. The photocopying expenses are

divided into two categories: photocopying of papers associated

with the case and exemplification — the production of exhibits to

be used at trial. 

28 U.S.C. § 1920(4) provides for taxation of “fees for

exemplification and copies of papers necessarily obtained for use

The defendants initially sought three $40.00 fees and 4

one $1,800.00 fee for Dr. Hyde. The clerk reduced the fee for

Dr. Hyde to $40.00 based on 28 U.S.C. § 1821. Neither party

contests this reduction, so I do not address it in this

memorandum. 

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Case 2:05-cv-00441-MAM Document 226 Filed 08/12/11 Page 6 of 15
in the case.” The plaintiffs argue that the clerk’s award of

$2,861.75 for copying and $5,152.17 for exemplifications is

improper because (1) the majority of photocopying costs are not

recoverable and (2) the defendants have not sufficiently itemized

their costs. 

1. Photocopying 

Insofar as the plaintiffs argue that the majority of

photocopying costs are not recoverable, they misconstrue the

applicable case law on taxation. § 1920(4) specifically states

that copying and exemplification costs for papers necessarily

obtained for use in the case are taxable. See also Fed. R. Civ.

P. 54(d) (“costs shall be allowed as of course to the prevailing

party.”). This statutory provision explicitly allowing for

copying costs creates a “strong presumption” that the costs are

taxable. In re Paoli, 221 F.3d 462. Where photocopying costs

are for documents necessarily obtained for use in the case, they

are taxable and, contrary to the plaintiffs’ assertions, there is

no “clear precedent” which holds otherwise.5

 The plaintiffs cite Levin v. Parkhouse, 484 F.Supp. 5

1091, 1096 (E.D. Pa. 1980) for the proposition that “the law is

clear that not every act of photocopying results in a taxable

cost.” This language does not appear anywhere in the opinion,

nor does the opinion suggest this principle of law. Rather, in

that case, the court did not allow the taxation of costs

associated with photocopying legal research, since such costs are

more analogous to attorney’s fees and are a “cost of doing

business.” Id. at 1096. 

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Case 2:05-cv-00441-MAM Document 226 Filed 08/12/11 Page 7 of 15
The plaintiffs also argue that the defendants have not

sufficiently itemized their copying costs. The defendants

contend that they are not required to list each document that was

copied and that an attestation from counsel is sufficient to

validate claimed costs.6

Whether or not photocopying costs are taxable depends

on the nature of the item copied — items that are necessarily

obtained for use in the case are taxable, but items obtained for

the convenience of counsel are not. Herbst v. Gen. Accident Ins.

Co., No. 97-8085, 2000 WL 1185517, at *2 (E.D. Pa. 2000); Nugget

Dist. Coop. v. Mr. Nugget, Inc., 145 F.R.D. 54, 57 (E.D. Pa.

1992). The party seeking costs for copying must provide evidence

of the material copied so the court can determine whether each

copy was in fact necessary. Where the prevailing party does not

provide an itemized description of the copying, Judges on this

Court have disallowed or reduced the costs because they were

unable to determine whether the costs were necessary. For 7

The defendants cite Schauffler v. United Assoc. of 6

Journeymen and Apprentices of the Pipe Fitting Indus. of the U.S.

and Canada, 246 F.2d 867 (3d Cir. 1957) for the proposition that

counsel’s attestation of the validity of costs is given great

weight. However, Schauffler dealt with costs awarded at the

discretion of the court in a contempt proceeding and does not

reference the substantiation of costs with an affidavit from

counsel’s attorney.

 There is no Third Circuit precedent on the degree of 7

specificity with which a party must enumerate its copying costs. 

8

Case 2:05-cv-00441-MAM Document 226 Filed 08/12/11 Page 8 of 15
example, in Montgomery County v. Microvote, the prevailing party

submitted a bill for photocopying that listed the dates of the

copies and the rate that was charged, but did not describe the

documents that were copied. No. 97-6331, 2004 WL 1087196, at *8

(E.D. Pa. 2004). In rendering its decision, the court stated

that an affidavit from counsel averring that the copies were

necessary was “conclusory” and “d[id] not assist the court” in

determining the nature of the documents. Id. The court held

that, in the absence of descriptions of the documents, it could

not decide whether the documents were necessary and it reduced

the costs by fifty percent. Id.; see also Elliot, Reihner,

Siedzikoski, & Egan, P.C. v. Richter, No. 96-3860, 2000 WL

427377, at *4 (E.D. Pa. 2000)(reducing award where itemization

was merely a chart with dates and amounts but no description of

what was copied); Herbst, 2000 WL 1185517, (disallowing copying

costs where party provided receipts for copies, but neither

itemized those copy costs, nor demonstrated how many sets of

copies were made); Morgan-Mapp v. George W. Hill Corr. Facility,

No. 07-2949, 2009 WL 1035141, at *3 (E.D. Pa. 2009)(identifying

date and number of copies without describing the documents was

insufficient); Ass’n of Minority Contractors & Suppliers, Inc. v.

Halliday Props., Inc., No. 97-274, 1999 WL 551903, at *4 (E.D.

Pa. 1999) (same); Yudenko v. Guarinni, No. 06-4161, 2010 WL

2490679, at *2 (E.D. Pa. 2010) (disallowing costs because

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Case 2:05-cv-00441-MAM Document 226 Filed 08/12/11 Page 9 of 15
“although defendants provided receipts for the photocopying, they

do not provide a description of the photocopies obtained.”).

The Second Circuit has also endorsed this standard,

holding that where a party did not itemize photocopy costs or

explain why they were necessary, it was not an abuse of

discretion for the district court to reduce them. United States

v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir.

1996); Whitfield v. Scully, 241 F.3d 264, 271 (2d Cir.

2001)(reaffirming the court’s holding in Merrit). The Fifth

Circuit’s precedent on this issue is also similar to that of the

district courts within this circuit. See Fogleman v. ARAMCO, 920

F.2d 278, 286 (5th Cir. 1991).8

By contrast, other courts have employed a less rigorous 8

standard as to the degree of specificity required. For example,

the Seventh Circuit requires only that the “documentation

establishes that the[] were copies made for this case for its

attorneys and billed in the normal course with the documents

coming in.” Northbrook Excess and Surplus Ins. Co. v. Procter &

Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991); see also Movitz v.

First Nat. Bank of Chicago, 982 F.Supp. 571, 577 (N.D.Ill.,1997). 

This standard does not demand descriptions of the documents, but

rather that the copies be related to the case. Further, the

Seventh Circuit has accepted affidavits from counsel attesting to

the nature of the documents as sufficient to establish costs as

taxable. See M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404,

1410 (7th Cir. 1991) The Sixth Circuit has also accepted an

attestation from counsel as sufficient to verify copying costs. 

BDT Prods. v. Lexmark Int'l, Inc., 405 F.3d 415, 420 (6th Cir.

2005). Additionally, the Tenth Circuit has stated that “the

burden of justifying copy costs is not “a high one” and that a

prevailing party need not justify each copy it makes. Case v.

Unified Sch. Dist. No. 233, 157 F.3d 1243, 1259 (10th Cir. 1998). 

 See also In re Williams Sec. Litig. WCG Subclass, 558 F.3d 1144,

1149 (10th Cir. 2009).

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The Court is persuaded that the standard used by

district courts in this circuit and by the Second Circuit is the

correct one. Without a description of the documents, the Court

cannot decide whether they were necessarily obtained for use in

the case. Here, the defendants have provided the following

documents to the Court: (1) an affidavit of counsel attesting to

costs; (2) a list of dates and amounts, but not descriptions, for

photocopies totaling $2,861.75; (3) an invoice in the amount of

$122.26 from defendants’ printing company. Based on the

information provided — merely dates and the rate charged — it is

impossible to determine whether the copies were necessary. 

Therefore, they are not taxable.

2. Exemplification Copy Costs

The plaintiffs also challenge the taxation of

exemplification costs. Exemplification costs are specifically

taxable under 28 U.S.C. § 1920(4) where they are necessarily

obtained for use in the case. The same standard governing

photocopies governs copies and exemplification, meaning that the

prevailing party must provide the court with evidence of the

material copied so the court can determine whether each copy was

in fact necessary. Herbst, 2000 WL 1185517, at *2. The

prevailing party is “not expected to provide a detailed

description of every piece of paper copied, [but] it is expected

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to provide the best breakdown of the copied material obtainable

from its records.” Microvote, 2004 WL 1087196, at *7(citations

omitted). 

Here, the defendants have included a detailed list of

the documents and other records that were produced for

exemplification. The degree of specificity is sufficient to

allow the court to determine the nature of the documents and

whether they were necessarily obtained for use in the case.

28 U.S.C. § 1920(4). The list is itemized with explicit

descriptions of the items used for exemplification. The items

listed include exhibits for use at trial, subpoena records, and

medical records that were relevant to the case. Unlike the list

of photocopies, which includes only dates and amounts, the list

of exemplifications includes specific descriptions of documents

that were necessary to the case. Cf. Microvote, 2004 WL 1087196,

at *7–8; Morgan-Mapp, 2009 WL 1035141, at *3. This case was 

complex with a significant number of exhibits and a voluminous

pre-trial record. Given these facts, the exemplification costs

are reasonable. The specificity with which defendants have

itemized the costs is sufficient to prove that the costs were for

items necessary to the case. Accordingly, they are properly

taxable.

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3. Villanueva Photocopies

 The plaintiffs object to the inclusion of $1,494.50 in

Villanueva’s photocopying costs. In the taxation of costs, the

clerk disallowed this claimed expense because it was not

sufficiently specific. In their motion opposing vacation, the

defendants did not contest the exclusion of these copying costs. 

Thus, while the Court is empowered to conduct a de novo review of

the bill of costs, it appears that defendants do not object to

this disallowance and that it is not in dispute. Accordingly,

the issue is moot. 

In any event, these copies are not properly taxable. 

The defendants have produced only one document – a spreadsheet –

which lists $1,494.50 in photocopy costs for Villanueva. The

defendants have adduced nothing further in support of these

costs. Although it is reasonable to assume that Villanueva 9

sustained some photocopy expenses in the course of litigation, it

is impossible to determine whether the costs for which he seeks

reimbursement were necessary to the case or merely for

convenience of counsel. 

 

By contrast, the defendants did provide invoices 9

specifically identifying the transcript and court reporter fees

that Villananueva sustained. See Resp. to Pl.’s Mot. in Opp. to

Def.’s Bill of Costs, Daddio Docket No. 217, Ex. D. 

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4. Inability to Pay

The plaintiffs’ final contention is that it is unfair

that they have to pay the defendants’ costs because they have

limited financial resources and are unable to pay. Although a

court may consider a party’s “potential indigency or inability to

pay the full measure of a costs award levied against [it],” the

court may not consider “relative disparities in wealth” between

the parties. In re Paoli, 221 F.3d at 468; Reger, 599 F.3d at

289.

Here, the parties have introduced no evidence that they

are indigent or otherwise unable to pay the full amount of the

costs. Instead, the plaintiffs have merely alleged that Mr.

Daddio is a state trooper and that the plaintiffs are a young

couple of modest means. Even if the Court takes these statements

as true, they merely establish a disparity in wealth, not

indigence or inability to pay. See Reger, 599 F.3d at 289

(“rejecting the . . . argument that disparity of wealth should be

considered in imposing costs.”) There is nothing in the record,

such as financial records, affidavits, or tax returns that

establish it would be inequitable to impose costs on the

plaintiffs. In the absence of evidence establishing indigence or

inability to pay, the Court cannot refuse to tax costs. See In

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re Paoli, 221 F.3d at 464. Here, there is no evidence of

indigence, therefore the costs are taxable against plaintiffs. 

An appropriate Order shall issue separately.

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