Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—D.Colo.: Costs awarded to prevailing plaintiffs in deceptive trade practices claims reduced, (Nov 15, 2013)

By Linda O’Brien, J.D., LL.M.

An award for costs to individuals who prevailed in their deceptive trade practice claims against a retail grocery store chain was reduced by amounts determined to be duplicative or insufficiently substantiated as reasonable and necessary , the federal district court in Denver has held (Watson v. Dillion Companies, Inc., November 13, 2013, Daniel, W.). Additionally, an award for prejudgment interest was granted.

Wayne and Mary Watson filed suit against retail grocery store operator Dillon Companies, d/b/a King Soopers and Inter-American Products, alleging strict liability, failure to warn, negligence and deceptive trade practices under the Colorado Consumer Product Act (CCPA). A jury returned a verdict in favor of the Watsons and a judgment was entered against Dillon. The plaintiffs filed a motion seeking costs and an award of prejudgment interest. The defendant challenged certain itemized costs as unreasonable, unnecessary and/or incurred solely for the convenience of counsel.

The court noted that the CCPA provides for an award of the costs of the action and reasonable attorney fees to a prevailing plaintiff who proves that a defendant engaged in a deceptive trade practice. In this case, the jury concluded that Dillon engaged in a deceptive trade practice that caused damages to the plaintiffs. However, in awarding costs to the plaintiffs, the court could use discretion in determining whether they were reasonable and necessary.

Expert witness fees. The Watsons sought fees paid to various expert witnesses. Dillon objected to fees attributable to a jury consultant and two physicians. Because the jury consultant never testified at any hearing or trial, and his billing statement contained only general descriptions of his tasks, the court was unable to determine whether his services were reasonable and necessary and reduced the plaintiffs’ costs request for the fees paid to the jury consultant. However, the court rejected the defendant’s objections to the fees paid to two physicians as duplicative since the physicians testified extensively and their expert opinions were considered by the trial court.

Expert witness and attorney travel expenses. The court also reduced the plaintiffs’ costs request for travel expenses for the jury consultant and for attorney travel expenses that were unreasonably duplicative and redundant.

Other costs. Additionally, general invoices submitted by the plaintiffs for office supplies, conference calls, couriers, document shredding and court reporter transcripts that contained no description as the nature of the services rendered were insufficient for the court to determine whether the costs were reasonable and necessary.

Prejudgment interest. In awarding the plaintiffs prejudgment interest at the state (Colorado) rate of 9 percent annum, the court found that the plaintiffs sought appropriate damages, interest, costs, and attorneys’ fees in their complaint which was sufficient to permit an award of prejudgment interest. Further, the plaintiffs’ failure to include the issue of prejudgment interest after the entry of the final judgment against the defendant was inadvertent and did not preclude their request.

The case is No. 08-cv-00091-WYD-CBS.

Attorneys: Kenneth B. McClain (Humphrey, Farrington & McClain, PC) for Wayne Watson. Brett Marshall Godfrey (Godfrey Johnson, P.C.) for Dillon Companies, Inc.

Companies: Dillon Companies, Inc.; Inter-American Products, Inc.

Cases: StateUnfairTradePractices ColoradoNews