United States Court of Appeals For the First Circuit No. 20-1092

MIGUEL MORALES-FIGUEROA,

Plaintiff, Appellant,

v.

ALICIA M. SANTOS; CONJUGAL PARTNERSHIP VALDES-SANTOS; NCMIC INSURANCE COMPANY,

Defendants, Appellees,

RUBEN VALDES, D.C.,

Defendant, Third Party Plaintiff, Appellee,

v.

CLINICA DE MEDICINA DEPORTIVA DEL CARIBE, INC.; DR. JANICE M. ALEMAN-PACHECO; PRESBYTERIAN COMMUNITY HOSPITAL, d/b/a Presby Wellness & Fitness Center; ABC AND XYZ INSURANCE COMPANIES; XYZ CORP.; JOHN DOE,

Third Party Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Howard, Chief Judge, Boudin, and Barron, Circuit Judges.

Jorge Miguel Suro Ballester, with whom Miguel A. Suro Carrasco and Suro & Suro were on brief for Appellant. Kenneth C. Suria, with whom Odemaris Chacón Verona and Estrella, LLC were on brief for Appellee. February 25, 2021 BOUDIN, Circuit Judge. Miguel Morales-Figueroa lost a

jury trial in his medical malpractice suit against appellees. Post

verdict, the district court taxed Morales with costs related to

expert witnesses used at trial. Morales has appealed the taxation

of these costs. Review is for abuse of discretion, Ramos-Santiago

v. United Parcel Serv.,

, 125 (1st Cir. 2008), save

that pure issues of law are reviewed de novo, InvesSys, Inc. v.

McGraw-Hill Cos.,

(1st Cir. 2004).

Timeliness. After judgment was entered, appellees

submitted a motion stating the costs they sought. Morales replied

that appellees had disregarded certain statutory formalities,

which appellees then remedied in a subsequent filing (submitted

after the deadline imposed by local rules, see D.P.R. Civ. R.

54(a)). Morales contests this process, but the trial judge's

decision to accept the filings despite the initial omissions was

not an abuse of discretion. See Phetosomphone v. Allison Reed

Grp., Inc.,

, 9-10 (1st Cir. 1993) (suggesting that

statutory requirements related to cost awards should not be

mechanically applied); see also García-Goyco v. Law Envtl.

Consultants, Inc.,

(1st Cir. 2005) (stating

that district courts receive considerable deference in the

application of their own local rules).

Expert Costs. Unless a witness is court-appointed, a

federal court cannot tax as costs more than $40 per witness per

- 3 - day for attendance "absent explicit statutory or contractual

authorization." Crawford Fitting Co. v. J.T. Gibbons, Inc.,

(1987); see

(6);

(a)(1), (b). The district court taxed Morales with paying

for four days of trial appearance by appellees' expert witness,

Dr. LaRusso, at a rate of $600 per hour, and with paying the $40

per day for the remaining days that LaRusso made himself available

and testified during appellees' case in chief. Morales argues

that the court's award of costs for Dr. LaRusso's appearance

exceeded the parameters of Crawford. Alternatively, Morales

argues that there was a contract, but it only requires him to pay

for the one hour LaRusso spent on the witness stand on July 11

testifying during Morales's presentation of his case.

Appellees point to no contractual or statutory

authorization for exceeding the $40 limit, and there is nothing

that comes close to an easily identified contract. The district

court costs award with respect to Dr. LaRusso's fees therefore

exceeded the court's authority and is hereby reversed.

On remand, the district court should review the cost

award for Dr. LaRusso and provide an award that complies with

Crawford: the cost award must follow the limits of

. The rest of the district court's order on costs we leave

undisturbed.

- 4 - Affirmed in part, reversed in part, and remanded for

proceedings consistent with this opinion. The parties shall bear

their own costs for this appeal.

- 5 -