#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
#27068

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.”). 
#27068

-2-

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 . . .
#27068

-3-

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.
#27068

-4-

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)). 
#27068

-5-

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

[.]”). Therefore, following the rationale of Morrison6, 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)).
#27068

-6-

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.