Virginia Med Mal Plaintiff Allowed to Add Court Costs to $1.8 Million Jury Award

A Richmond federal court recently stated that a Virginia medical malpractice plaintiff is allowed to add court costs to his $1.8 million jury award, which basically means court costs are not calculated into the state's statutory cap.

Wendell Waggener had filed a lawsuit against Dr. Steven J. Oltermann and Northern Neck Surgical Services, claiming that Oltermann did not diagnose a colonic obstruction and perform an emergency procedure in a timely manner.  The jury awarded Waggener, who was represented by Richmond attorney John Petty, $2 million, which was dropped to $1.8 million due the cap on medical malpractice damages.

Waggener requested an award for $2,706.88 in court costs, but the defendants objected to his request. The defendants made the argument that the state’s statutory damage cap prohibited the federal court from taxing costs in accordance with Fed. R. Civ. P.54(d), since the judgment would at that point go above the cap.

U.S. District Judge Robert Payne rejected the defendants’ claim that awarding the court costs would push the plaintiff’s award higher than Virginia’s cap.  According to Payne, federal courts have continuously held that taxation of costs is an issue of federal procedure, not state substantive law.

Petty said he was not able to find any opinions in federal or state court regarding this issue.