Patrick E. Phillips, Jr. v. G & H Seed Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1484

PATRICK E. PHILLIPS, JR., ET AL.

VERSUS

G & H SEED CO., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, DOCKET NO. 00-C-2220-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

AFFIRMED.

Elwood C. Stevens, Jr.
Domengeaux Wright Roy & Edwards, LLC
556 Jefferson Street, Suite 500
P.O. Box 3668
Lafayette, LA 70502-3668
(337) 233-3033
COUNSEL FOR PLAINTIFFS/APPELLEES:
Patrick E. Phillips, et al.

Jerald Edward Knoll, Sr.
The Knoll Law Firm, LLC
P.O. Box 426
Marksville, LA 71351-0426
(318) 253-6200
COUNSEL FOR PLAINTIFFS/APPELLEES:
Patrick E. Phillips, et al.

Andre’ F. Toce
The Toce Firm, A.P.L.C.
969 Coolidge Blvd.
Lafayette, LA 70503
(337) 233-6818
COUNSEL FOR PLAINTIFFS/APPELLEES:
Patrick E. Phillips, et al.

Gary A. Bezet
Robert E. Dille
Carol L. Galloway
Allison N. Benoit
Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P.
II City Plaza
400 Convention Street, Suite 700
P.O. Box 3513
Baton Rouge, LA 70821
(225) 387-0999
COUNSEL FOR DEFENDANTS/APPELLANTS:
Bayer CropScience LP, Michael Redlich, G&H Seed Company, Inc.,
Crowley Grain Drier, Inc., Nolan J. Guillot, Inc., and Mamou Rice Drier
and Warehouse, Inc.

Terrence D. McCay
Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P.
One Lakeshore Drive, Suite 1150
Lake Charles, LA 70629
(337) 430-0350
COUNSEL FOR DEFENDANTS/APPELLANTS:
Bayer CropScience LP, Michael Redlich, G&H Seed Company, Inc.,
Crowley Grain Drier, Inc., Nolan J. Guillot, Inc., and Mamou Rice Drier
and Warehouse, Inc.

Raymond P. Ward
Adams and Reese, L.L.P.
701 Poydras Street, Suite 4500
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR DEFENDANTS/APPELLANTS:
Bayer CropScience LP and Michael Redlich

Michael T. Pulaski
McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, PC
195 Greenbriar Blvd., Suite 200
Covington, LA 70433
(337) 831-0946
COUNSEL FOR DEFENDANTS/APPELLANTS:
Allianz Global Risks and US Insurance Company

COOKS, Judge.

This is an appeal from a judgment in a civil action which cast costs against the

prevailing party. The Defendants, Bayer CropScience, LP, and its employee, Michael

Redlich, were ordered to pay court costs of $326,307.09, even though it garnered a

favorable verdict in the court of appeals and a subsequent denial of writs by the

Louisiana Supreme Court. Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir.

4/8/09), 10 So.3d 339, writ denied, 09-1504 (La. 10/30/09), 21 So.3d 284. “A ‘costs’

judgment against a defendant is a separately appealable judgment where the amount

of expert witness fees taxed as costs are substantial and where, following a judgment

on the merits, the trial court takes the matter of costs under advisement and conducts

additional hearings on such matter.” Hoyt v. State Farm Mut. Auto. Ins. Co., 623

So.2d 651 (La.App. 1 Cir. 1993), (citing Louisiana Resources Company v. Fiske, 343

So.2d 1219 (La.App. 3 Cir.1977).

FACTS AND PROCEDURAL HISTORY

This case has a long history, including two prior appeals and a concurrent

appeal. We set forth the relevant facts and procedural history in the concurrent appeal,

Phillips v. v. G & H Seed Co., 08-934 (La.App. 3 Cir. 5/11/11), ___ So.3d ___:

This protracted and contentious litigation had its genesis in the late
1990’s, when Bayer CropScience LP and its employee, Michael G.
Redlich, marketed the insecticide ICON in Louisiana. Certain companies
purchased ICON, applied it to rice seed, and sold the ICON-coated rice
seed to rice farmers in Louisiana. Many of these rice farmers also raised
crawfish in their rice ponds.

Essentially, Plaintiffs allege the ICON coated rice seed was
introduced into the rice fields/crawfish ponds of South Louisiana in
1999. The active ingredient in ICON was fipronil, which is a chemical
used to control arthropods and is used in a variety of compounds to
control insects such as termites, fleas, mole crickets and the rice water
weevil. According to the plaintiffs, the introduction of ICON killed
and/or sterilized the crawfish, both wild and pond-raised. According to
the plaintiffs, as a result of the contamination, Louisiana’s annual farm-
raised crawfish crop dropped from over 60 million pounds to

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approximately 10 million pounds.

Defendants argued the use of ICON is not incompatible with
crawfish farming, provided the farmer allows for a suitable waiting
period between planting the ICON-treated rice seed and introducing
crawfish tot he rice field. Defendants also argued the record breaking
drought in Louisiana during the time in question was the reason for the
decline in crawfish production.

In 1999, a class action lawsuit was filed on behalf of all crawfish
farmers in Louisiana, Craig West, et al. v. G & H Seed Co., et al., No. 99-
C-4984-A in the Twenty-Seventh Judicial District Court, Parish of St.
Landry. That lawsuit was eventually settled.

Thereafter a class action suit was initiated on behalf of Patrick
Phillips and Atchafalaya Processors, Inc, individually and on behalf of
all others similarly situated. Essentially, this class action suit was
brought by crawfish buyers, processors and resellers. Named as
Defendants were Bayer CropScience LP and Michael Redlich. Also
named as Defendants were the companies who purchased the ICON,
applied it to the rice seed, and sold it to the farmers: G&H Seed Co.,
Inc., Crowley Grain Drier, Inc., Delhi Seed Co., Inc., Terral Seed Co.,
Inc., Mamou Rice Drier & Warehouse, Inc.

Plaintiffs eventually abandoned their efforts to certify either a
plaintiff or defendant class. Thereafter, through a series of supplemental
and amending petitions, the matter proceeded as a cumulation of
individual actions comprising the claims of approximately 72 individual
crawfish buyers, resellers and processors.

Bayer filed an exception of no cause of action, contending in order
to maintain a delictual action against a manufacturer for property damage
caused by a defective product, the claimants must have some proprietary
interest in the damaged property. Bayer argued that since none of the
plaintiffs in this litigation are crawfish farmers, and none of them had any
ownership in the damages crop, they could not demonstrate the required
proprietary interest. Plaintiffs argued there were existing joint ventures
between the crawfish farmers and buyers/processors during the time the
crawfish crop was damaged. The trial court overruled the exception,
rejecting the per se exclusionary/proprietary interest rule of Robins Dry
Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134 (1927), in favor
of the policy driven duty/risk analysis espoused in PPG Industries, Inc.
v. Bean Dredging, 447 So.2d 1058 (La.1984). The trial court found in
applying a duty-risk analysis, the law extended a remedy to the
buyer/processor plaintiffs. Bayer applied for writs to this Court. Writs
were denied.

Because of the enormity of trying all 72 actions at once, the trial
court determined it would be best to try the actions of four plaintiffs,
three to be chosen by the plaintiffs and one chosen by the defense. This

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number was eventually reduced to three plaintiffs: Patrick Phillips (d/b/a
Phillips Seafood), James Bernard (d/b/a J. Bernard Seafood Processors,
Inc.), and Lisa Guidry (d/b/a Guidry’s Crawfish).

After a full trial on the merits, Plaintiffs filed a Motion for
Directed Verdict on whether the Defendants duty extended to these
buyer/processor plaintiffs. Finding there was an “ease of association
from farmer to wholesale” such that farmers and processors are
“inextricably interwoven and symbiotic in their relationships,” the trial
court granted the Motion for Directed Verdict. The jury then returned a
verdict in favor of each of the three plaintiffs, assigning 94% fault or
causation to Bayer, 1% to Bayer salesman Michael Redlich, and 4% to
the drought that occurred in South Louisiana. It awarded $900,000 to
plaintiff Phillips, $750,000 in damages to plaintiff Bernard, and $100,000
to plaintiff Guidry.

Defendants timely filed a Motion for Judgment Notwithstanding
the Verdict, New Trial, and Remittitur. The motions were denied and
Defendants filed an appeal with this Court.

A five judge panel of this Court reversed the trial court’s directed
verdict on scope of duty and set aside the jury’s verdict. Phillips v. G &
H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339 (hereafter
referred to as Phillips I). The majority reasoned that since “the plaintiffs
in this case failed to prove a proprietary interest in the crawfish crop
destroyed by the use of ICON. . . . the plaintiff's cause must fail.” Id. at
344. The majority did not undertake a duty-risk analysis or apply the
PPG factors as done by the trial court. Instead it applied the per se
exclusionary/proprietary interest rule of Robins Dry Dock. Plaintiffs
also note the majority did not explain what would be “sufficient” to
establish a proprietary interest under Louisiana law.

Judge Saunders dissented from the majority opinion, finding it
contradicted the Louisiana Supreme Court’s finding in 9 to 5 Fashions,
Inc. v. Spurney, 538 So.2d 228, 234 (La. 1989), that “the PPG case
abrogat[ed] the rule that flatly prohibited recovery for intangible
economic loss produced by negligent conduct.” Judge Saunders found
“the only conclusion a reasonable juror could reach was that Bayer had
reckless disregard for the potential ramifications to this state's crawfish
industry, as a whole, when crawfish farmers used ICON.” Phillips I, 10
So.3d at 345. This callousness, Judge Saunders concluded, was
sufficient to support the trial court’s directed verdict on scope of duty.
Further, Judge Saunders noted that even if one interprets PPG as the
majority does, it was factually distinguishable from the present case. In
PPG, the plaintiff had an alternative source to get the natural gas it
needed, whereas the buyers/processors here had no other source for the
crawfish they contracted to receive from the crawfish farmers. This
interwoven, symbiotic relationship between crawfish farmers and
crawfish buyers/processors was different than that present in PPG.

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Plaintiffs Application for Rehearing to this Court was denied.
Similarly, the application for a Writ of Review to the Louisiana Supreme
Court was denied. Phillips v. G & H Seed Co., 09-1504 (La. 10/30/09),
21 So.3d 284. Following these denials, Bayer filed Motions for
Summary Judgment against all the remaining buyer/processor plaintiffs
based on the proprietary interest requirement espoused by this Court’s
opinion in Phillips I.

While the appeal in Phillips I was pending, Plaintiffs filed a motion to tax their

trial-court costs against Defendants. That motion remained dormant until after the

decision in Phillips I, when Defendants filed their own motion to tax trial-court costs.

Plaintiffs responded by re-urging their motion to tax costs.

Both motions were heard on May 10, 2010. At the hearing the trial court

expressly stated he was taking judicial notice of all proceedings and of “everything

that was on the record.” The trial court, in lengthy oral reasons for judgment,

determined that based on its evaluation of the overall circumstances presented and the

conduct of the parties involved, fairness and equity required that Defendants pay all

costs. Specifically, the trial court gave the following reasons for this conclusion:

The big question is, ultimately, what’s equitable? I look at [La.Code
Civ.P. art.] 1920. . . the trial court may assess costs in any equitable
manner and its assessment will not be reversed on appeal, but as Mr.
Dille says, its not unfettered discretion, in the absence of an abuse of
discretion. I understand that Judge Domengeaux pretty much said, as I
noted earlier, there’s not much of a threshold that I have to reach in
exercising my discretion, but it does say what’s equitable. I find both
sides, as I said, skirted right at the edge of the envelope sometimes.
That’s what good lawyers do. That’s how new law is made. I indicated
in – I took the lawyers into conference. I want to state this for the record
for the Court of Appeal to indicate to them that my lean at the time after
reading everything but before arguments where I would leave it open to
be convinced otherwise was to let each side just pay their own costs.
There was litigation – it was expensive. And if you went at the level that
needed this case to be presented, it’s going to be expensive. In
considering the equities involved, I understand both sides are asking for
about the same amount. I awarded, and I’ll be candid, I awarded costs
against the defendants because the plaintiffs were the prevailing party.
I never gave a second thought to whether there was any equity involved
or not, just said they lost, they get to pay. The shoe is on the other foot
as it were now. And defendants, to their credit, didn’t say, wait, wait,
wait, wait. They knew they had time to look at what the costs would be

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and to make the arguments. Plaintiffs are out of time now. It’s here. I
have to determine what’s equitable. I wasn’t impressed with Alfred E.
King’s top-down economic application theory. I wasn’t sometimes
impressed with this Court ordered discovery. As I recall, seventeen
people lost their cases because discovery wasn’t produced. Discovery on
a motion to compel by the defendants against the plaintiffs. I dismissed
those cases with prejudice. It’s easy to point the fingers. It’s a lot harder
to determine what equity is. I was offended by the letter to the scientific
journal. I was offended by the accurate but misleading response when
asked if any counsel knew of this correspondence. I was not pleased at
all. That’s when I think the edge got crossed. I wasn’t happy when Mr.
Toce threw his pen on that table because he got angry with one of my
rulings. My goodness, what lawyer worth his salt wouldn’t get angry at
a judge when he – looking the way you guys looked and you don’t get
your way. But you don’t get to behave poorly. But behaving poorly and
throwing a pencil is a little bit different than some of the actions I saw.
I’m struggling with doing something that is almost never done. You
know what’s coming. Granting costs or casting costs against the
prevailing party. But I don’t want to do all the costs of the plaintiff
which is why I was looking for some form of barometer as to the
activities that you take issue with, some of which I agree with. I would
have liked to have known what effort was required to combat and I don’t
have that benefit. I don’t want to postpone this. It’s time to get it behind
us. I’m coming to the end. I believe when it’s all said and done that the
appeal in Wiltz is going to remain as it’s posited right now. I believe
when it’s all said and done that the Fifth Circuit is likely to rule without
certifying the question out of the federal court. I think this case is
basically over, hard fought as it was, well presented as it was. I take all
of that into consideration. I take into consideration the fact that I believe
it’s unfair to have three plaintiffs carrying, and I accept the 6.3 percent
figure, of what started out as a class action and what was in agreement
test cases, not bellwether in the technical sense because the defendants
did not agree that the results of the trial would be utilized to settle all the
remaining cases. But I think its just unfair to make those three plaintiffs
carry the ball and I think with the appellate court, certainly under 2164,
I like that, that they cast appellate costs and they certainly could have
reversed me on trial costs and that looming as large as anything, I cast
defendant, the prevailing party, with all costs of these proceedings.

Defendants moved for new trial, asking the trial court to strike the cost of

certain depositions not used at trial. The trial court refused to strike the cost of those

depositions. At the new trial hearing, the trial court expounded on its reasons for

assessing Defendants with all costs:

Now I’m going to tell you once again my reason for that ruling. . . . I
understand this was hard fought litigation by hardball lawyers, but what
ultimately caused me to cast the costs to the prevailing party in this

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particular instance was the behavior in some sense by the defendant with
regard to Peter McCahon. I was quite taken aback by that and to me that
was consistent with the behavior throughout these proceedings. Mr.
McCahon was said to be unavailable for trial and he’s way, way too
important to come all the way to Opelousas. He’s got to be in Germany
somewhere because he’s the president of Bayer CropScience. And then
when things didn’t go quite as well as might have been expected he
shows up for trial. I didn’t like that. I did not like the methods utilized
to attempt to debunk Dr. Schlenk with a peer-reviewed published article
and then the response that I got, which I found to be less than
forthcoming. That’s two of the reasons. I did not like that Dr. Roman
Weil or whatever his name was, the PhD from Chicago was being called
down here to – you can say what you want Mr. Dille and I know we
disagree, but my impression at the time and its still my impression, that
he was brought down here to tell me how I should apply the law in
Daubert because he was not a Daubert expert economist, he was a
Daubert expert on Daubert and I found that was a waste of time, effort
and money and I found that it was overreaching by a defendant who had
resources far greater than those who were presenting. I did not like that
the young lady, I can’t even recall her name, the third bellwether, the
smallest claim of the three bellwethers was served with a lawsuit in the
middle of this trial, that her husband was subpoenaed and served with a
lawsuit the day before he testified. I thought that was done solely for the
purpose of intimidation and it offended me greatly. I find then that many
of these costs could have been lessened by less than – less aggressive
measures by the defendant. So for those reasons, along with all the
reasons I mentioned at new trial – at the original trial on the fixing of
costs, that’s why I did what I did and exercised the discretion, and again,
I did not think it was fair to have three plaintiffs bear the burden of
everybody when basically the way I looked at this and the way it
developed was there was a general agreement that we would try these
three and attempt to do something.

Defendants appealed the trial court’s assessment of costs, asserting the following

assignments of error:

1. The trial court erred in failing to award the prevailing defendants
their trial costs, and instead ordering the prevailing defendants to pay the
losing plaintiffs’ costs.

2. In the alternative, in ruling on defendant’s motion for new trial, the
trial court erred in refusing to strike from the cost award the $27,792.60
spent on depositions not used at trial.

ANALYSIS

Louisiana Code of Civil Procedure article 1920 provides for the taxing of costs

after trial. While it is the general rule to tax the party cast in judgment, the article

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affords the trial court discretion in the matter, providing in pertinent part: “[e]xcept as

otherwise provided by law, the court may render judgment for costs, or any part

thereof, against any party, as it may consider equitable.” Louisiana Code of Civil

Procedure article 1920 has been consistently interpreted to grant the trier of fact great

discretion in apportioning costs as it deems equitable under the circumstances. See

Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ

denied, 95-2076 (La.11/13/95), 662 So.2d 478; Gauthier v. Wilson, 04-2527 (La.App.

1 Cir. 11/4/05), 927 So.2d 383, writ denied, 05-2402 (La.3/31/06), 925 So.2d 1258;

Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir.5/31/05), 905 So.2d 1127; Mitter

v. Touro Infirmary, 03-1608 (La.App. 4 Cir. 4/21/04), 874 So.2d 265; Hunter v.

Bossier Medical Center, 31,026 (La.App. 2 Cir. 9/25/98), 718 So.2d 636. This court

in Johnson v. Bucyrus-Erie Company, 476 So.2d 1074, 1075 (La.App. 3 Cir. 1985),

noted that the trial court’s “discretion is not unbridled but is restricted to the realm of

what is equitable.” We further instructed that “[w]hat is ‘equitable’ can only be

determined on a case-by-case basis which necessarily involves a review of the facts

involved.” Id.

While it is the general rule under La.Code Civ.P. art. 1920 for costs to be

assessed against the party cast in judgment, “[i]n some situations, the best interests of

justice are served by casting the prevailing party with all costs.” Courtney v.

Winn-Dixie Louisiana, Inc., 447 So.2d 504, 510 (La.App. 5 Cir.), writ denied, 449

So.2d 1359 (La.1984). The courts have given instruction on what is required to cast

the prevailing party with costs, stating that a prevailing party may be taxed with costs

“if that party in some way incurred additional costs pointlessly or engaged in other

conduct which would equitably justify the prevailing party being assessed.” Williams

v. Wiggins, 26,060, p. 6 (La.App. 2 Cir. 8/17/94), 641 So.2d 1068, 1074; see also Ford

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v. State Dept. of Public Safety, 00-1546 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156,

1157; Westley v. Allstate Ins. Co., 05-100 (La.App. 5th Cir.5/31/05), 905 So.2d 1127;

Rathey v. Priority EMS, Inc., 04-0199 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, writ

denied, 05-789 and 05-802 (La.5/6/05), 901 So.2d 1107, 1108; Morrison v. Gonzalez,

602 So.2d 1104 (La.App. 1 Cir.1992).

Although an exception to the general rule, the jurisprudence contains numerous

cases where the prevailing party was cast with some or all costs. See Trahan v.

Asphalt Associates, Inc., 01-311 (La.App. 3 Cir. 10/17/01), 800 So.2d 18; Doe v.

Roman Catholic Church, 656 So.2d 5; Fanara v. Big Star of Many, Inc., 558 So.2d

316 (La.App. 3 Cir. 1990); Johnson v. Bucyrus-Erie Company, 476 So.2d 1074; Lee

v. Constar, Inc., 05-633 (La.App. 5 Cir. 02/14/06), 921 So.2d 1240, writ denied,

06-880 (La.6/2/06), 929 So.2d 1263 (wherein appellate court affirmed trial court’s

casting of all costs against prevailing party based strictly on trial court’s vast

discretion, even without finding the prevailing party incurred additional costs

pointlessly or engaged in other conduct justifying the assessment of costs against it);

Wendelboe v. Exxon Shipping Co., 08-1846 (La.App. 1 Cir. 2/13/09), 6 So.3d 882;

Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504.

The record before us indicates the trial court in this case was well aware of the

law applicable to the assessment of costs, and specifically noted he was doing

something that “is almost never done,” i.e., assessing all costs against the prevailing

party. The record further establishes the trial court used its discretion to cast costs in

the manner it did because it believed Defendants’ counsel engaged in conduct which

would equitably justify the assessment of costs against the prevailing party.

It should be noted that the trial court presided over this case for ten years and

was fully aware of all aspects of the litigation. The trial court assessed costs in this

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matter bases on its “sense of equity.” As set forth earlier in the opinion, the trial court

specifically listed a number of examples of improper behavior by Defendants’ counsel

during these proceedings. Not surprisingly, Defendants take exception with the trial

court’s characterization of these acts. We will examine them in turn.

A. Letter to the Scientific Journal.

The trial court stated he was “offended” by a letter written by Defendant Bayer’s

in-house counsel to the editor of a scientific journal, the Journal of Environmental

Toxicology. Apparently, Bayer became aware Dr. Dan Schlenk, plaintiffs’ retained

environmental toxicology expert, was submitting an article for publication based

largely on a report he prepared for Plaintiffs in advance of trial. Bayer’s in-house

counsel submitted a letter seeking to repudiate Dr. Schlenk’s proposed article based

largely on the deposition taken of Dr. Schlenk by Defendants’ trial counsel. The

journal initially pulled the article from publication until the scientific anomalies

claimed in Bayer’s letter were found not to exist.

When this letter to the scientific journal became a subject at trial during Dr.

Schlenk’s testimony, counsel for Defendants initially denied its existence. This trial

court referenced this “misleading response when asked if any counsel knew of this

correspondence.” Defendants contend nothing Bayer “did in connection with this

letter increased cost or vexatiousness of the Phillips litigation.” The record would

indicate otherwise. As Plaintiffs note, the jury stood idle for an entire day and an

instanter deposition of Dr. Schlenk was required in the middle of trial. Dr. Schlenk’s

testimony dragged on for days, requiring him to return to California over a weekend

for a previously scheduled event. Further, the editor of the Journal of Environmental

Toxicology had to be located to furnish a copy of the letter, which then necessitated

a special hearing held in the middle of the trial concerning its admissibility. Plaintiffs

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stress that the similarity of the points raised in the letter and the points probed in Dr.

Schlenk’s deposition demonstrate that Defendants were undoubtedly aware of the

letter’s existence. The trial court agreed and found the answers by Defendants counsel

were less than forthcoming at trial, and added unnecessary delay and expense to an

already voluminous and complex trial.

B. Collection Efforts Against the Guidrys.

Defendants acknowledge that “[d]uring the Phillips trial, co-defendant G&H

Seed Company undertook an ill-timed effort to collect a debt allegedly owed by

plaintiff Lisa Guidry and her husband.” However, Defendants maintain these efforts

were undertaken through a lawyer not involved in this litigation, and without its

knowledge. Plaintiffs counter that at the time the collection efforts were commenced

against the Guidrys, the same attorneys were in fact counsel for all Defendants,

including G&H Seed Company. The trial court did not accept Defendants self-serving

assertion that they were totally disassociated with the “ill-timed” collection efforts,

particularly considering that Mr. Guidry was subpoenaed the day before he was

scheduled to testify. The trail court specifically noted he believed this was done solely

for intimidation purposes.

C. Unnecessary Depositions.

The trial court “didn’t like” that on the eve of trial, Defendants informed the

court and Plaintiffs that Peter McCahon, a president of Bayer, would not be available

for trial. Defendants informed the trial court that it would be noticing Mr. McCahon’s

video deposition in lieu of his testimony. This required the trial court and Plaintiffs’

counsel to expend considerable time in reviewing the video to determine the permitted

scope and admissibility of the deposition. Plaintiffs presented excerpts of Mr.

McCahon’s deposition in its case in chief, only to have Mr. McCahon arrive near the

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end of trial and attempt to testify live.

The trial court also noted the last minute insertion of the deposition and

testimony of Dr. Roman Weil contributed nothing to the trial and was, in its view,

simply an attempt to add to the already voluminous record. The trial court specifically

felt this last-minute addition “was a waste of time, effort and money and . . . was

overreaching by a defendant who had resources far greater than those [of plaintiffs]

who were presenting.” The last minute noticing of Dr. Weil’s deposition required

Plaintiffs’ attorneys to go to Dallas days before the trial to take an impromptu

discovery deposition, followed immediately by a video trial deposition.

Defendants argue that they noticed and took the depositions in good faith, but

acknowledge the trial court felt differently. Defendants do not quibble with those

findings on appeal. Instead, they allege that, in the context of such a massive

litigation, “two depositions are not an equitable reason to shift all costs to the

prevailing party.” This argument would hold more merit if these two unnecessary

depositions were the only reasons given for the trial court’s shifting of costs to the

Defendants. However, the trial court listed other reasons for its decision to cast

Defendants for all costs, and specifically noted the actions in reference to Mr.

McCahon were “consistent with the behavior throughout these proceedings.”

Defendants also argued that because Plaintiffs were not able to separate the

exact amount of additional expenses due to the Mr. McCahon and Dr. Weil situations,

the trial court abused its discretion in awarding all costs to Plaintiffs. A review of the

record indicates the trial court did broach the subject with counsel for Plaintiffs

concerning whether they could carve out those particular expenses. Plaintiffs candidly

acknowledged it would be difficult, if not impossible, to determine the exact

itemization of these expenses. Defendants cite no case law which requires the trial

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court to itemize particular expenses which are required by specific acts. Rather, the

trial court appears to have concluded, in the use of its statutorily authorized discretion,

that the overall conduct of Defendants established a pattern of overreaching and

unduly aggressive behavior that justified its assessment of costs. We cannot say this

constituted an abuse of the trial court’s discretion.

D. Overall Aggressive Behavior.

Defendants assets that both sides were equally aggressive in representing their

clients interests, and penalizing only one side for aggressiveness is inequitable. The

trial court noted the aggressive actions by both sides, stating it “was hard fought

litigation by hardball lawyers.”

A review of the trial court’s reasons clearly indicate while Plaintiffs’ counsel

engaged in an aggressive pursuit of its clients’ interests, the trial court did not find the

actions of both sides counsel were “equally” aggressive. The trial court found counsel

for Defendants’ actions crossed the line from aggressive advocacy to certain

unnecessary and delitorious actions. The trial court specifically noted a difference

between the actions of Defendants’ counsel and those of counsel for Plaintiffs. While

noting he was not pleased with that one of Plaintiff’s counsel threw a pencil because

of his disappointment in one of the trial court’s rulings, the trial court stated “behaving

poorly and throwing a pencil is a little bit different than the actions I saw.” The trial

court, in discussing counsel for Defendants’ denial of knowledge of the letter sent to

the scientific journal, specifically stated this was when it believed “the edge got

crossed.”

E. Size of the Parties.

Defendants point to the fact that the trial court suggested he took into account

the parties’ respective size and ability to pay into consideration when apportioning

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costs. The trial court stated:

[A]t the end of the day, I think size can matter and that’s what I’m asking
you. We’ve got three plaintiffs who one of them for sure, Ms. Guidry,
made [$48,000] as I recall one year. If I slip her with in solido
[$350,000] judgment, she’s going into bankruptcy. So I think size is a
consideration. It deals with equitableness.

Defendants note that any equitable considerations taken into account when assessing

costs under La.Code Civ.P. art. 1920 do not automatically translate into “[h]e pays

who can best afford it.” Henderson v. Louisiana Downs, Inc., 566 So.2d 1059, 1064

(La.App. 2 Cir. 1990). Plaintiffs agree that “equity” does not translate into the party

in the superior economic position automatically pays.

However, contrary to Defendants’ assertion in brief, it is clear the trial court did

not choose to award all costs against them “simply because of [their] ability to pay.”

The trial court set forth numerous examples of behavior by Defendants’ counsel that

it was not happy with. He also addressed the issue of “size” in the context of

Defendants initiating several legal maneuvers because it possessed “resources far

greater than [plaintiffs].” We find the trial court’s consideration of size was one of

several valid considerations in addressing the equities involved.1

F. Conclusion.

Our review of the record establishes the trial court believed that, under La.Code

Civ.P. art. 1920, equitable considerations required that costs be assessed in this case

against the prevailing party. Specific, multiple reasons were given by the trial court,

1
In addressing possible alternative costs assessments the trial court could have ordered in
this case, Defendants in brief posit that the “trial court could have allocated the costs pro rata or pro
tanta against all plaintiffs – not just the three trial plaintiffs. Such a ruling would have been
equitable because the trial of these three plaintiffs’ cases was undertaken for the benefit of all
plaintiffs, not just the three.” This “helpful” suggestion by Defendants ignores the fact that
Defendants refused to make the judgment in the trial of the three plaintiffs binding on the remaining
plaintiffs. Further, despite the three plaintiffs being selected as “test/trial plaintiffs,” Defendants
insisted on conducting full discovery against and depositions of all the named plaintiffs. These
discovery requests culminated in seventeen (17) plaintiffs being dismissed for failure to comply. The
trial court specifically noted he was not “impressed” with these discovery requests.

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as well as a general conclusion that Defendants engaged in a pattern of behavior

throughout the proceedings which caused additional costs to be incurred. After

reviewing the record, we cannot say the trial court abused its vast discretion in its

award of costs in the instant case.

II. Depositions Not Used at Trial.

In its second assignment of error, Defendants contend the trial court committed

legal error in ordering them to pay Plaintiffs costs for depositions not used at trial. At

the motion for new trial, Defendants pointed out that the trial court’s cost award

included the cost of several depositions that were not used at trial. Defendants set the

costs of these depositions at $27,782.60, a figure which has not been disputed by

Plaintiffs.

Defendants state in brief that the trial court’s “reasons for taxing the costs of

these depositions do not indicate any intention to sanction Defendants or their counsel

for some form of gross misconduct.” We do not agree with this interpretation of the

trial court’s reasons given at the hearing. The trial court’s gave the following oral

reasons for keeping the costs of those depositions:

I’m going to leave those in and I’m going to leave those in and I’ll
– the reason is this litigation in the wide panorama that it covered and the
tortious route to get to get to trial commenced as a class action, then
moved to mass joint, then went to three ostensible bellwethers and so a
lot of these cost factors were the result of actions on discovery and the
reason why I’m casting the costs as I have, I’ll make mention of that in
a moment, but I’m going to leave those costs in.

The trial court’s reasons indicate he taxed the depositions in question as costs because

it fell within the same pattern of behavior that led it to assess costs against Defendants.

Moreover, Defendants’ argument that the trial court was “without legal

authority to tax the cost of these depositions” is incorrect. This Court in Brown v.

American Honda Motor Co., Inc., 97-599 (La.App. 3 Cir. 12/3/97), 704 So.2d 1234,

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in affirming the trial court’s assessment of costs, which included depositions not used

at trial, instructed:

Partially at issue in the case sub judice is whether costs of
depositions, not used at the trial, can be assessed against Honda. Clearly,
under La.R.S. 13:4533 and Boutte v. Nissan Motor Corp., 94-1470
(La.App. 3 Cir. 9/13/95), 663 So.2d 154, they cannot. However, it is
quite obvious that the trial court, in awarding costs to the Browns, that
included the costs of depositions which were not used at trial and which
are normally not recoverable, intended the award of costs to be a
sanction for the misconduct of Honda's counsel in the trial and the
damage it caused to the Browns. The trial court was obviously motivated
by the equities of this situation and the clear injustice that would result
to the Browns by permitting Honda to totally escape liability for its
counsel’s nefarious conduct in the trial court.

The trial court’s reasons indicate that it awarded the cost of these depositions because

it fell within the same pattern of behavior exhibited by Defendants throughout the

course of these proceedings which caused additional costs to be unnecessarily

incurred. Much as in Brown, the trial court here was motivated by the “equities of the

situation,” and we will not disturb its conclusion as to what costs are equitable.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed against Defendants-Appellants.

AFFIRMED.

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