Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 1 of 25 PageID #:6321
`
`AO 133
`
`(Rev. 12/09) Bill of Costs
`
`UNITED STATES DISTRICT COURT
`for the
` Northern District of Illinois
`__________ District of __________
`
`Case No.:
`
`(cid:21)(cid:26)(cid:17)(cid:71)(cid:90)(cid:17)(cid:26)(cid:25)(cid:21)(cid:16) (cid:21)(cid:27)(cid:17)(cid:71)(cid:90)(cid:17)(cid:27)(cid:29)(cid:21)(cid:23)
`
`)))))
`
`(cid:44)(cid:83)(cid:87)(cid:84)(cid:77)(cid:86)(cid:69)(cid:16) (cid:45)(cid:82)(cid:71)(cid:18)
`
`v.
`(cid:42)(cid:86)(cid:73)(cid:87)(cid:73)(cid:82)(cid:77)(cid:89)(cid:87) (cid:47)(cid:69)(cid:70)(cid:77) (cid:57)(cid:55)(cid:37)(cid:16) (cid:48)(cid:48)(cid:39)
`
`BILL OF COSTS
`
`Judgment having been entered in the above entitled action on
`
`the Clerk is requested to tax the following as costs:
`
`(cid:21)(cid:22)(cid:19)(cid:21)(cid:27)(cid:19)(cid:22)(cid:20)(cid:21)(cid:28)
`Date
`
`against
`
`(cid:44)(cid:83)(cid:87)(cid:84)(cid:77)(cid:86)(cid:69)(cid:16) (cid:45)(cid:82)(cid:71)(cid:18)
`
`,
`
`Fees of the Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`$
`
`Fees for service of summons and subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Fees for printed or electronically recorded transcripts necessarily obtained for use in the case . . . . . .
`
`Fees and disbursements for printing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Fees for witnesses (itemize on page two)
`
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Fees for exemplification and the costs of making copies of any materials where the copies are
`necessarily obtained for use in the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Docket fees under 28 U.S.C. 1923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Costs as shown on Mandate of Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Compensation of court-appointed experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Compensation of interpreters and costs of special interpretation services under 28 U.S.C. 1828 . . . . .
`
`Other costs (please itemize) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`TOTAL
`
`$
`
`(cid:21)(cid:20)(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:23)(cid:26)(cid:16)(cid:28)(cid:20)(cid:27)(cid:18)(cid:25)(cid:21)
`
`(cid:22)(cid:16)(cid:25)(cid:28)(cid:25)(cid:18)(cid:28)(cid:22)
`
`(cid:28)(cid:16)(cid:29)(cid:24)(cid:23)(cid:18)(cid:25)(cid:28)
`
`(cid:26)(cid:22)(cid:16)(cid:27)(cid:28)(cid:27)(cid:18)(cid:23)(cid:23)
`
`(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:22)(cid:26)(cid:16)(cid:28)(cid:28)(cid:22)(cid:18)(cid:25)(cid:20)
`
`(cid:21)(cid:23)(cid:28)(cid:16)(cid:21)(cid:20)(cid:26)(cid:18)(cid:27)(cid:24)
`
`SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories.
`
`Declaration
`
`I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the
`services for which fees have been charged were actually and necessarily performed. A copy of this bill has been served on all parties
`in the following manner:
`
`(cid:24)
`
`Electronic service
`
`Other:
`
`First class mail, postage prepaid
`
`
`
`For:
`
`s/ Attorney:
`
`(cid:46)(cid:83)(cid:73)(cid:80) (cid:49)(cid:18) (cid:59)(cid:69)(cid:80)(cid:80)(cid:69)(cid:71)(cid:73)
`Name of Attorney:
`
`(cid:46)(cid:83)(cid:73)(cid:80) (cid:49)(cid:18) (cid:59)(cid:69)(cid:80)(cid:80)(cid:69)(cid:71)(cid:73)
`
`(cid:42)(cid:86)(cid:73)(cid:87)(cid:73)(cid:82)(cid:77)(cid:89)(cid:87) (cid:47)(cid:69)(cid:70)(cid:77) (cid:57)(cid:55)(cid:37)(cid:16) (cid:48)(cid:48)(cid:39)
`Name of Claiming Party
`
`Taxation of Costs
`
`Date:
`
`(cid:20)(cid:21)(cid:19)(cid:21)(cid:26)(cid:19)(cid:22)(cid:20)(cid:21)(cid:28)
`
`Costs are taxed in the amount of
`
`and included in the judgment.
`
`Clerk of Court
`
`Deputy Clerk
`
`Date
`
`By:
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 2 of 25 PageID #:6322
`AO 133 (Rev. 12/09) Bill of Costs
`
`UNITED STATES DISTRICT COURT
`
`Witness Fees (computation, cf. 28 U.S.C. 1821 for statutory fees)
`
`NAME , CITY AND STATE OF RESIDENCE
`
`(cid:12)(cid:87)(cid:73)(cid:73) (cid:69)(cid:88)(cid:88)(cid:69)(cid:71)(cid:76)(cid:73)(cid:72) (cid:87)(cid:89)(cid:84)(cid:84)(cid:83)(cid:86)(cid:88)(cid:77)(cid:82)(cid:75) (cid:77)(cid:82)(cid:74)(cid:83)(cid:86)(cid:81)(cid:69)(cid:88)(cid:77)(cid:83)(cid:82) (cid:74)(cid:83)(cid:86) (cid:72)(cid:73)(cid:88)(cid:69)(cid:77)(cid:80)(cid:13)
`
`ATTENDANCE
`
`SUBSISTENCE
`
`MILEAGE
`
`Days
`
`Total
`Cost
`
`Miles
`
`Total
`Cost
`
`Days
`
`Total
`Cost
`
`(cid:28)(cid:16)(cid:29)(cid:24)(cid:23)(cid:18)(cid:25)(cid:28)
`
`Total Cost
`Each Witness
`
`(cid:8)(cid:28)(cid:16)(cid:29)(cid:24)(cid:23)(cid:18)(cid:25)(cid:28)
`
`(cid:8)(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:8)(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:8)(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:8)(cid:20)(cid:18)(cid:20)(cid:20)
`
`(cid:8)(cid:20)(cid:18)(cid:20)(cid:20)
`
`TOTAL
`
`(cid:8)(cid:28)(cid:16)(cid:29)(cid:24)(cid:23)(cid:18)(cid:25)(cid:28)
`
`Section 1924, Title 28, U.S. Code (effective September 1, 1948) provides:
`“Sec. 1924. Verification of bill of costs.”
`“Before any bill of costs is taxed, the party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or by
`his duly authorized attorney or agent having knowledge of the facts, that such item is correct and has been necessarily incurred in the case and
`that the services for which fees have been charged were actually and necessarily performed.”
`
`NOTICE
`
`See also Section 1920 of Title 28, which reads in part as follows:
`“A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.”
`
`The Federal Rules of Civil Procedure contain the following provisions:
`RULE 54(d)(1)
`
`Costs Other than Attorneys’ Fees.
`Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney's fees — should be allowed to the
`prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk
`may tax costs on 14 day's notice. On motion served within the next 7 days, the court may review the clerk's action.
`
`RULE 6
`
`(d) Additional Time After Certain Kinds of Service.
`
`When a party may or must act within a specified time after service and service is made under Rule5(b)(2)(C), (D), (E), or (F), 3 days are
`added after the period would otherwise expire under Rule 6(a).
`
`RULE 58(e)
`
`Cost or Fee Awards:
`
`Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a
`timely motion for attorney's fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become
`effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 3 of 25 PageID #:6323
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF
`ILLINOIS EASTERN DIVISION
`
`
`
`HOSPIRA, INC.
`
`
`Plaintiff,
`
`
`
`v.
`
`FRESENIUS KABI USA, LLC,
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`C.A. No. 1:16-cv-00651
`C.A. No. 1:17-cv-07903
`(Consolidated)
`
`Hon. Rebecca R. Pallmeyer
`
`
`
`DEFENDANT FRESENIUS KABI’S BILL OF COSTS AND DISBURSEMENTS
`
`This Bill of Costs is submitted on behalf of Defendant Fresenius Kabi USA, LLC in the
`
`above-captioned matter. This matter was a lengthy and complex patent litigation that
`
`commenced in 2016 and resulted in a five day trial in July of 2018. At trial, the Court heard
`
`testimony from five fact witnesses and six expert witnesses. Discovery leading up to the trial
`
`involved extensive document production by Fresenius Kabi.
`
`On November 17, 2018, this Court issued a 55 page opinion and Final Judgment in the
`
`above-captioned matter in favor of Fresenius Kabi. See Exhibits 1 and 2 to the Declaration of
`
`Joel M. Wallace Pursuant to 28 U.S.C. § 1924 (“Wallace Declaration”).
`
`Fresenius Kabi is the prevailing party in this litigation. For the purposes of Rule 54, the
`
`prevailing party is “the party who prevails as to the substantial part of the litigation.” First
`
`Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1015 (7th Cir. 1985). “In
`
`those cases in which one party wins completely on every claim at issue, determining which party
`
`has prevailed is a straightforward task.” Manildra Millin Corp. v. Ogilview Mills, Inc., 76 F.3d
`
`1178, 1182 (Fed. Cir. 1996). Here, Fresenius Kabi completely removed Hospira’s ability to
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 4 of 25 PageID #:6324
`
`recover for its asserted patents, and so is the prevailing party. See Med. Co. v. Mylan Inc., No.
`
`11-cv-1285, 2017 WL 4882379, at *3 (N.D. Ill. Oct. 30, 2017). As such, Fresenius Kabi may
`
`recover for its taxable costs. Fed. R. Civ. P. 54. For this reason, pursuant to Federal Rule of Civil
`
`Procedure 54(d), 28 U.S.C. § 1920, and Local Rule 54.1, Fresenius Kabi is entitled to recover the
`
`following costs from Plaintiff Hospira, Inc.
`
`BILL OF COSTS – SUPPORTING INFORMATION
`
`Fresenius Kabi requests taxation of $138,106.74 in costs against Hospira. The basis for
`
`Fresenius Kabi’s requested costs is explained below by category. Please note that for many of the
`
`accompanying invoices, Fresenius Kabi is only seeking taxation of a portion of the costs listed
`
`on the invoice. For such invoices, Fresenius Kabi has indicated the applicable costs in yellow
`
`highlighting.
`
`I.
`
`Fees Of The Clerk
`
`Clerk Fee
`Pro Hac Vice fee for Ahmed Riaz
`Pro Hac Vice fee for Gina Bassi
`TOTAL
`
`Amount
`$50.00
`$50.00
`$100.00
`
`Fees paid for Pro Hac Vice application fees are recoverable under 28 U.S.C. § 1920(1).
`
`Boogaard v. National Hockey League, No. 2017 WL 5517231, at *1 (N.D. Ill. Nov. 17, 2017)
`
`(discussing the Seventh Circuit’s acknowledgement of pro hac vice fees as taxable costs)
`
`(discussing U.S. ex rel. Gear v. Emergency Med. Associates of Ill., Inc., 436 F.3d 726 (7th Cir.
`
`2006)).
`
`As identified in the Wallace Declaration (¶4), the applications for Mr. Riaz and Ms. Bassi
`
`were necessary to the litigation. Mr. Riaz was essential to the defense of the litigation. He took
`
`fact and expert witness depositions, conducted critical research and legal strategy throughout the
`
`case, and presented at trial. His pro hac fee was necessary to the litigation, and is a taxable cost
`
`
`
`2
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 5 of 25 PageID #:6325
`
`in this circuit. Ms. Bassi oversaw the litigation in its pretrial and early pleading stages until she
`
`left the firm, including preparing the original Answer and Counterclaims for Fresenius Kabi.
`
`Documentation supporting the costs listed in §I is attached hereto as Exhibit 3.
`
`II.
`
`Fees For Transcripts Necessarily Obtained For Use In This Case
`
`A.
`
`Court Reporter Trial and Hearing Transcripts
`
`DESCRIPTION
`
`Trial Transcripts, July 16 through 20, 2018
`
`Hearing on August 10, 2017 – Hospira v. Amneal (D. Del.)
`
`Markman Hearing on December 11, 2017
`
`Hearing on February 4, 2016
`
`Hearing on September 19, 2017
`
`Hearing on January 25, 2018
`
`Pre-trial Hearing on July 6, 2018
`
`Hearing on October 4, 2018
`
`Hearing on November 13, 2018
`
`COST
`
`$ 4,926.58
`
`64.00
`
`14.40
`
`54.75
`
`24.20
`
`36.30
`
`68.40
`
`7.20
`
`36.30
`
`TOTAL FEES FOR TRIAL TRANSCRIPTS:
`
`$ 5,232.13
`
`The prevailing party is entitled to recover the costs of transcripts “necessarily obtained
`
`for use in the case.” 28 U.S.C. § 1920(2); Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993). Daily
`
`transcripts were necessary for Fresenius Kabi to prepare its witnesses for direct and cross
`
`examination, as well as for attorneys to prepare to take cross examinations of Hospira’s
`
`witnesses. See Davis v. Budz, No. 99-cv-3009, 2011 WL 1303435, at *1 (N.D. Ill. Mar. 31,
`
`2011) (Pallmeyer, J.); Stranski v. Homer Township Highway Dept., No. 07-cv-4731, 2010 WL
`
`3824102, at *2 (N.D. Ill. Sep. 23, 2010) (Pallmeyer, J.). Additionally, the trial transcripts were
`
`cited extensively in the post-trial briefing and in the Court’s Opinion, indicating their necessity.
`
`Fresenius Kabi’s cost of obtaining hearing transcripts is a taxable cost. The transcripts
`
`include the pre-trial conference, the Markman hearing, and motion and status hearings. The
`
`
`
`3
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 6 of 25 PageID #:6326
`
`transcripts were necessary to provide out-of-state counsel with a record of the hearings and for
`
`use in filing and responding to various motions filed in the case. See SP Techs., LLC v. Garmin
`
`Int’l, Inc., No. 08-cv-3248, 2014 WL 300987, at *2 (N.D. Ill. Jan. 10, 2014) (Pallmeyer, J.)
`
`(awarding costs for hearing transcripts). As described in the Wallace Declaration (¶ 5), counsel
`
`also consulted previous hearing transcripts in deciding whether to file or not file later discovery
`
`motions. See Beam v. Petersen, No. 07-cv-1227, 2011 WL 4431815, at *5 (N.D. Ill. Sep. 22,
`
`2011) (Pallmeyer, J.). Also included is the invoice for the transcript of the Pretrial Conference
`
`from the Amneal litigation in Delaware, which was obtained and used for preparation of trial
`
`strategy and in the preparation of discovery motions and hearings. For these reasons, the
`
`transcripts are a necessary cost. Fresenius Kabi has not requested non-taxable fees, such as
`
`Realtime text, ASCII rough drafts, etc.
`
`Documentation supporting the cost of the trial transcripts listed in § II(A) is attached
`
`hereto as Exhibit 4.
`
`B.
`
`Fees Incurred in the Taking and Transcribing of Depositions
`
`1.
`
`Depositions of Hospira’s Expert Witnesses
`
`DESCRIPTION
`
`USE OF TRANSCRIPT
`
`Seaton, Christopher [06/13/2018] –
`Transcript
`
`Seaton, Christopher [06/13/2018] –
`Video
`Linhardt, Robert [06/05/2018] –
`Transcript
`
`Linhardt, Robert [06/05/2018] –
`Video
`Ogenstad, Stephan [06/12/2018] –
`Transcript
`
`Used in preparation for cross-
`examination of expert witness at trial
`and during examination at trial
`Used in preparation for cross-
`examination of expert witness at trial
`Used in preparation for cross-
`examination of expert witness at trial
`and during examination at trial
`Used in preparation for cross-
`examination of expert witness at trial
`Used in preparation for cross-
`examination of expert witness at trial
`and during examination at trial
`
`INVOICE
`DATE
`2018 06 20
`
`COST
`
`1,835.37
`
`2018 06 20
`
`747.50
`
`2018 06 12
`
`1,870.65
`
`2018 06 12
`
`1,010.00
`
`2018 06 19
`
`912.62
`
`
`
`4
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 7 of 25 PageID #:6327
`
`DESCRIPTION
`
`USE OF TRANSCRIPT
`
`Ogenstad, Stephan [06/12/2018] –
`Video
`Sheinin, Eric [06/15/2018] –
`Transcript
`
`Used in preparation for cross-
`examination of expert witness at trial
`Used in preparation for cross-
`examination of expert witness at trial
`and during examination at trial
`Sheinin, Eric [06/15/2018] – Video Used in preparation for cross-
`examination of expert witness at trial
`and played at trial
`Used in preparation for cross-
`White, James [06/07/2018] –
`examination of expert witness at trial
`Transcript
`White, James [06/07/2018] – Video Used in preparation for cross-
`examination of expert witness at trial
`Used in preparation for cross-
`examination of expert witness at trial
`Used in preparation for cross-
`examination of expert witness at trial
`Used in preparation for cross-
`examination of expert witness at trial
`and during examination at trial
`Used in preparation for cross-
`Ramsay, Michael [05/31/2018] –
`examination of expert witness at trial
`Video
`TOTAL FEES FOR DEPOSITIONS OF EXPERTS:
`
`Carter, Andrew [06/01/2018] –
`Transcript
`Carter, Andrew [06/01/2018] –
`Video
`Ramsay, Michael [05/31/2018] –
`Transcript
`
`INVOICE
`DATE
`2018 06 19
`
`2018 06 22
`
`COST
`
`587.50
`
`852.80
`
`2018 06 22
`
`563.75
`
`2018 06 14
`
`1630.70
`
`2018 06 14
`
`800.00
`
`2018 06 08
`
`2,248.80
`
`2018 06 08
`
`957.50
`
`2018 06 07
`
`2,277.38
`
`2018 06 07
`
`905.00
`
`$ 17,199.57
`
`Costs for the transcripts of Hospira’s expert witness depositions are allowable under 28
`
`U.S.C. § 1920(2) and Local Rule 54.1 (“the expense of any prevailing party in necessarily
`
`obtaining all or any part of a transcript for use in a case . . . shall be taxable as costs against the
`
`adverse party.”). As described in the accompanying Wallace Declaration (¶6), deposition
`
`transcripts for Hospira’s experts were necessarily obtained for use in this case, and were used in
`
`preparation for and during cross-examination of these witnesses at trial. The transcripts were also
`
`used by Fresenius Kabi’s experts to prepare their deposition and trial testimony. That Hospira
`
`decided before trial to not bring two witnesses does not affect the taxability of the costs because
`
`at the time the transcripts were ordered, Fresenius Kabi was reasonable in expecting to need the
`
`transcripts for use at trial. Interclaim Holdings Ltd. v. Ness, Motley, Loadholt, Richardson &
`
`
`
`5
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 8 of 25 PageID #:6328
`
`Poole, No. 00-cv-7620, 2004 WL 557388, at *7 (N.D. Ill. Nar. 22, 2004) (Pallmeyer, J.) (citing
`
`Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998)). Finally, each witness
`
`appeared on the parties’ “may call” or “will call” lists in the Final Pretrial Order (D.I. 114-6 at 2-
`
`3; 114-7 at 2-3). Thus, the costs are taxable. See Medicines Co. v. Mylan Inc., No. 11-cv-1285,
`
`2017 WL 4882379, at *5 (N.D. Ill. Oct. 30, 2017) (“Third, [video] costs may be awarded for
`
`witnesses who appear on the ‘may call’ or ‘will call’ trial witness lists.”). The transcripts for
`
`Hospira’s expert witnesses were necessarily expedited because of the truncated discovery and
`
`trial schedule. Additionally, Fresenius Kabi’s counsel used the expedited transcripts to prepare
`
`their expert witnesses for deposition, and to prepare cross examinations for the trial held less
`
`than one month after expert depositions. Waiting for the normal processing time would have
`
`been infeasible.
`
`The costs of video depositions are also taxable under prevailing case law. At the time of
`
`taking the deposition, it was unknown whether every expert would be available to attend trial,
`
`and showing the video better enables the court to evaluate each witness’s demeanor and
`
`credibility. See Beam, 2011 WL 4431815, at *4. In fact, Fresenius Kabi did play the deposition
`
`testimony of Dr. Sheinin at trial because of his lack of availability. As such, at the time the video
`
`depositions were ordered, Fresenius Kabi was reasonable in expecting to need them for use at
`
`trial. See Interclaim, 2004 WL 557388, *7. Fresenius Kabi has not requested non-taxable costs,
`
`such as DVD media costs and handling and processing fees.
`
`Documentation supporting the costs listed in § II(B)(1) is attached hereto as Exhibit 5.
`
`Costs for Realtime services, rough draft transcripts, exhibits, litigation packages, expedited fees,
`
`and for shipping and handling have not been included pursuant to applicable precedent. The
`
`
`
`6
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 9 of 25 PageID #:6329
`
`costs included have been indicated with yellow highlighting on the invoices attached hereto as
`
`Exhibit 5.
`
`2.
`
`Depositions of Fresenius Kabi’s Experts
`
`DESCRIPTION
`
`USE OF TRANSCRIPT
`
`INVOICE
`DATE
`2018 06 15
`
`COST
`
`$ 926.00
`
`2018 06 20
`
`1,675.26
`
`2018 06 26
`
`632.50
`
`2018 06 12
`
`1,588.27
`
`2018 06 15
`
`1,090.62
`
`$ 5,912.65
`
`Lankau, Peter [06/07/2018] –
`Transcript
`
`Kipp, James [06/13/2018] –
`Transcript
`
`Kipp, James [06/13/2018] –
`Video
`
`Used in preparation for direct examination of
`expert witness at trial and during examination
`at trial
`Used in preparation for cross-examination of
`expert witness at trial and during examination
`at trial
`Used in preparation for cross-examination of
`expert witness at trial and during examination
`at trial
`Used in preparation for cross-examination of
`expert witness at trial and during examination
`at trial
`Used in preparation for cross-examination of
`expert witness at trial and during examination
`at trial
`TOTAL FEES FOR DEPOSITIONS OF EXPERTS:
`
`Maile, Michael [06/05/2018]
`– Transcript
`
`Hofmann, Ivan [06/08/2018]
`– Transcript
`
`Costs for the deposition transcripts of Fresenius Kabi’s expert witnesses are allowable
`
`under 28 U.S.C. § 1920(2) and Local Rule 54.1 (“the expense of any prevailing party in
`
`necessarily obtaining all or any part of a transcript for use in a case . . . shall be taxable as costs
`
`against the adverse party.”). As described in the accompanying Wallace Declaration (¶7),
`
`deposition transcripts for Fresenius Kabi’s experts were necessarily obtained for use in this case,
`
`and were used in preparation for and direct and cross-examination preparation of these witnesses
`
`at trial. The video portion of Dr. Kipp’s deposition was taken at the insistence of Hospira. As
`
`such, those costs are allowable. Additionally, taking of video depositions was reasonable at the
`
`time in case of unexpected witness unavailability and to provide the Court with the opportunity
`
`to evaluate each witness’s demeanor and credibility. See Beam, 2011 WL 4431815, at *4.
`
`
`
`7
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 10 of 25 PageID #:6330
`
`Finally, each witness appeared on the parties’ may or will call lists in the Final Pretrial Order
`
`(D.I. 114-6 at 2-3; 114-7 at 2-3). Thus, the costs are taxable. See Medicines, 2017 WL 4882379,
`
`at *5. Fresenius Kabi did not ultimately order the videos for the depositions of Dr. Maile, Mr.
`
`Lankau, or Mr. Hofmann, so their cost is not requested.
`
`Documentation supporting the costs listed in § II(B)(2) is attached hereto as Exhibit 6.
`
`Costs for Realtime services, rough draft transcripts, exhibits, litigation packages, expedited fees,
`
`and for shipping and handling have not been included pursuant to applicable precedent. The
`
`costs included are indicated with yellow highlighting on the invoices attached at Exhibit 6.
`
`3.
`
`Depositions of Fact Witnesses
`
`DESCRIPTION
`
`USE OF TRANSCRIPT
`
`Cedergren, Robert [11/16/2016] --
`Transcript
`
`Cedergren, Robert [11/16/2016] –
`Video
`Tata-Venkata, Rao [11/09/2016] –
`Transcript
`
`Tata-Venkata, Rao [11/09/2016] --
`Video
`Roychowdhury, Priyanka
`[11/30/2016] – Transcript
`
`Roychowdhury, Priyanka
`[11/30/2016] – Video
`Engels, Dave 30(b)(6)
`[11/11/2016] – Transcript
`
`Engels, Dave 30(b)(6)
`[11/11/2016] – Video
`Mowli, Shweta [11/17/2016] --
`Transcript
`
`Used in preparation for cross-examination
`of fact witness at trial and during
`examination at trial
`Used in preparation for cross-examination
`of fact witness at trial
`Used in preparation for cross-examination
`of fact witness at trial and during
`examination at trial
`Used in preparation for cross-examination
`of fact witness at trial and played at trial
`Used in preparation for cross-examination
`of fact witness at trial and during
`examination at trial
`Used in preparation for cross-examination
`of fact witness at trial
`Used in preparation for cross-examination
`of fact witness at trial and during
`examination at trial
`Used in preparation for cross-examination
`of fact witness at trial
`Used in preparation for direct examination
`of fact witness at trial and during
`examination at trial
`
`INVOICE
`DATE
`2016 12 19
`
`COST
`
`935.55
`
`2016 12 19
`
`895.00
`
`2016 11 30
`
`1,749.45
`
`2016 11 30
`
`2016 12 19
`
`2018 07 18
`
`2016 12 01
`
`2018 07 06
`
`2016 11 30
`
`942.50
`
`756.95
`
`220.00
`
`659.30
`
`220.00
`
`685.65
`
`
`
`8
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 11 of 25 PageID #:6331
`
`DESCRIPTION
`
`USE OF TRANSCRIPT
`
`INVOICE
`DATE
`2018 06 04
`
`COST
`
`402.50
`
`2016 11 23
`
`293.85
`
`2018 06 01
`
`2016 11 30
`
`172.50
`
`357.40
`
`2018 06 01
`
`172.50
`
`$ 8,463.15
`
`Mowli, Shweta [11/17/2016] --
`Video
`
`Ibrahim, Basma [11/08/2016] –
`Transcript
`
`Taken at request of Hospira. Used in
`preparation for direct examination of fact
`witness at trial
`Used in preparation for direct examination
`of fact witness at trial and during
`examination at trial
`Taken at request of Hospira. Played at
`trial.
`Used in preparation for direct examination
`of fact witness at trial and during
`examination at trial
`Taken at request of Hospira. Used in
`Hickman, Abby [11/22/2016] –
`preparation for expert witnesses
`Video
`TOTAL FEES FOR DEPOSITIONS OF FACT WITNESSES:
`
`Ibrahim, Basma [11/08/2016] –
`Video
`Hickman, Abby [11/22/2016] –
`Transcript
`
`Costs for deposition transcripts of fact witnesses are allowable under 28 U.S.C. § 1920(2)
`
`and Local Rule 54.1 (“the expense of any prevailing party in necessarily obtaining all or any part
`
`of a transcript for use in a case . . . shall be taxable as costs against the adverse party.”). As
`
`described in the accompanying Wallace Declaration (¶8), each deposition transcript was
`
`necessarily obtained for use in the case. The transcripts of Ms. Mowli, Dr. Roychowdhury, Dr.
`
`Cedergren, and Mr. Engels were used to prepare for the live testimony of each witness at trial.
`
`These transcripts were also relied upon by the experts in their analysis of issues of the on-sale
`
`bar, obviousness, and secondary considerations. The transcript of Dr. Tata-Venkata and Dr.
`
`Ibrahim were used to prepare the video-taped testimony submitted at trial, and relied upon by
`
`experts in preparation of their opinions. The transcript of Ms. Hickman was noticed by Hospira,
`
`and relied upon by experts of both parties for secondary considerations. Moreover, the parties
`
`identified each witness on the “may call” or “will call” lists and submitted deposition
`
`designations for each witness, indicating the necessity of these transcripts to the case. (DI 114-6,
`
`114-7, 114-8, 114-9.) See Medicines, 2017 WL 4882379, at *5.
`
`
`
`9
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 12 of 25 PageID #:6332
`
`The video portions of the depositions are taxable because at the time each was conducted,
`
`it was unknown which witnesses would be brought live or have testimony submitted by video.
`
`See Beam, 2011 WL 4431818, at *4. In fact, the parties negotiated which witnesses were to be
`
`brought live up to the eve of trial, so procuring video depositions was reasonable at the time the
`
`deposition was taken. See Interclaim, 2004 WL 557388, at *7. Portions of the video depositions
`
`of Dr. Tata-Venkata and Dr. Ibrahim were played at trial.
`
`Documentation supporting the costs of fees for depositions of fact witnesses used at trial,
`
`listed in II(B)(3), is attached hereto as Exhibit 7. Accordingly, the total fees for all of the
`
`transcripts necessarily obtained for use in this case that taxable under 28 U.S.C. § 1920(2) can be
`
`summarized as follows:
`
`Fees for Trial Transcripts at II(A)
`Fees for Depositions of Hospira’s Experts at II(B)(1)
`Fees for Depositions of Fresenius Kabi’s Experts at II(B)(2)
`Fees for Depositions of Fact Witnesses at II(B)(3)
`§ 2 TOTAL
`
`
`
`III.
`
`Fees and Disbursements for Witnesses
`
`$ 5,232.13
`17,199.57
`5,912.65
`8,463.16
`$ 36,807.51
`
`A. Witness Fees, Subsistence, and Travel Expenses
`
`Witness
`
`Attendance
`Days
`Total
`@
`$40
`
`Lodging & Meals
`Days @
`Days @
`Total
`[GSA
`[GSA
`lodging
`M&IE
`rate]
`rate]
`
`Travel
`Expenses
`
`Total
`Cost
`
`
`
`
`
`
`
`$ 0.00
`
`$ 0.00
`
`$ 80.00
`
`0.00
`
`0.00
`
`80.00
`
`0.00
`
`0.00
`
`80.00
`
`Shweta Mowli:
`Deposition
`Basma
`Ibrahim:
`Deposition
`Abby
`Hickman:
`Deposition
`
`2
`
`2
`
`2
`
`$ 80.00
`
`80.00
`
`80.00
`
`
`
`0
`
`0
`
`0
`
`10
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 13 of 25 PageID #:6333
`
`2
`
`2
`
`2
`
`2
`
`2
`
`3
`
`5
`
`4
`
`Mr. Lankau:
`Deposition
`[06/07/2018]
`Dr. Kipp:
`Deposition
`[06/13/2018]
`Dr. Maile:
`Deposition
`[06/05/2018]
`Mr. Hofmann:
`Deposition
`[06/08/2018]
`Shweta Mowli:
`Trial
`Peter Lankau:
`Trial
`
`Dr. Kipp:
`Trial
`
`Dr. Maile:
`Trial
`
`TOTALS
`
`80.00
`
`80.00
`
`80.00
`
`80.00
`
`200.00
`
`160.00
`
`1,080.00
`
`2 @
`$215
`
`2 @
`$215
`
`1 @
`$193
`3 @
`$193
`
`5 @
`$193
`
`4 @
`$193
`
`
`
`80.00
`
`2 @
`$215
`
`2 @
`55.50
`
`541.00
`
`967.90
`
`1,588.90
`
`80.00
`
`0
`
`0
`
`0.00
`
`0.00
`
`80.00
`
`2 @
`55.50
`
`2 @
`55.50
`
`430.00
`
`550.80
`
`
`1,060.80
`
`430.00
`
`688.18
`
`1,198.18
`
`248.50
`
`378.00
`
`1 @
`55.50
`2 @
`55.50
`1 @ 74
`2 @
`55.50
`3 @ 74
`2 @
`55.50
`2 @ 74
` 4,324.50
`
`1,298.00
`
`999.00
`
`0.00
`
`629.60
`
`328.50
`
`1,087.60
`
`0.00
`
`
`702.60
`
`
`1,498.00
`
`1,861.60
`
`3,539.08 $8,943.58
`
`Costs for witness fees are allowed by 28 U.S.C. § 1920(3) and L.R. 54.1. The rates for
`
`witness fees, mileage, and subsistence are fixed by statute. 28 U.S.C. § 1821.
`
`Attendance Fees: Title 28, section 1821(a)(1) provides attendance fees for attendance in
`
`court or at deposition. Section 1821(b) provides for “an attendance fee of $40 per day for each
`
`day’s attendance,” and “for the time necessarily occupied in going to and returning from the
`
`place of attendance at the beginning and end of such attendance.” No fact witnesses appeared at
`
`trial by subpoena, therefore no witness or mileage fees were paid in advance.”
`
`Lodging and Meals: The rates for subsistence and lodging are set at the GSA rates for
`
`Chicago in 2018. 28 U.S.C. § 1821(d)(2); see https://www.gsa.gov/travel/plan-book/per-diem-
`
`rates/per-diem-rates-
`
`lookup/?action=perdiems_report&state=IL&fiscal_year=2018&city=Chicago. The fees are
`
`
`
`11
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 14 of 25 PageID #:6334
`
`taxable for both deposition and trial witnesses. Subsistence fees are allowed when an overnight
`
`stay is required at the place of attendance. Id. § 1821(d)(1). Subsistence fees are also awarded for
`
`witnesses who need to prepare and appear for trial and deposition. Fresenius Kabi seeks witness
`
`fees, subsistence fees, and travel expenses for its fact and expert witnesses to prepare for and
`
`appeared for trial and deposition.
`
`Travel Expenses: For witnesses who travel by common carrier, actual reasonable travel
`
`expenses are taxable. 28 U.S.C. § 1821(c)(1). Additionally, taxicab fares between lodging and
`
`airport terminals or parking fees incurred by witnesses are taxable. Id. § 1821(c)(3).
`
`As described in the Wallace Declaration (¶9), Fresenius Kabi’s fact witnesses were all
`
`located in this district, so no travel fees were necessary. The expert witness depositions took
`
`place in this district to prevent the need for issuance of subpoenas. Fresenius Kabi’s expert
`
`witnesses traveled by common carrier and incurred reasonable expenses. Fresenius Kabi also
`
`requests taxi fees for travel between the airport and hotel or parking fees. Dr. Kipp lives in the
`
`district, so he did not require lodging for his deposition. Because of the distance to his home, and
`
`time needed for preparation, he stayed in accommodations in Chicago during trial. As described
`
`in the Wallace Declaration, Ms. Mowli was on site and prepared to testify on Wednesday, July
`
`18, 2018. But Hospira did not call Ms. Mowli to testify until Thursday, July 19. Ms. Mowli lives
`
`in a north suburb and was still breast feeding her infant during trial. It was therefore not practical
`
`for her to travel back and forth, so she stayed in Chicago for the night of July 18 to be available
`
`all day July 19. Fresenius Kabi seeks the GSA cost of her stay and subsistence of those trial days.
`
`Documentation supporting the costs listed in § III(A) is attached hereto as Exhibit 8.
`
`Portions of expert fee summaries not related to taxable costs have been obscured as irrelevant
`
`and implicating protected work product.
`
`
`
`12
`
`

`

`Case: 1:16-cv-00651 Document #: 185 Filed: 01/16/19 Page 15 of 25 PageID #:6335
`
`B.
`
`Expert Discovery Costs Pursuant to Fed. R. Civ. P. 26(b)(4)(E)
`
`Witness
`
`Mr. Lankau
`Dr. Kipp
`Dr. Maile
`Mr. Hofmann
`TOTALS
`
`Deposition Fees
`Rate /
`Hrs
`Total
`hr
`670.00
`670.00
`770.00
`485.00
`
`4.5
`7
`7.75
`6.0
`
`Preparation Fees
`Rate /
`Hrs
`Total
`hr
`$ 3,015.00 670.00
`4,690.00 520.00
`5,967.50 770.00
`2,910.00 485.00
`16,582.50
`
`
`1.5
`6.0
`5.5
`4.0
`
`
`$ 1,005.00
`