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McLaren v. Sufficool

Supreme Court of South Dakota

April 8, 2015

DONALD MCLAREN, in his capacity as the personal representative of the Estate of Karla McLaren, Plaintiff and Appellant,
v.
WESLEY SUFFICOOL, D.O., Defendant and Appellee

Considered on Briefs November 17, 2014.

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE CRAIG A. PFEIFLE, Judge.

JAMES D. LEACH Rapid City, South Dakota, Attorney for plaintiff and appellant.

LONNIE R. BRAUN, GREGORY J. BERNARD of Thomas, Braun, Bernard & Burke, LLP Rapid City, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice. ZINTER, SEVERSON, and WILBUR, Justices, and KONENKAMP, Retired Justice, concur. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, did not participate.

OPINION

Page 558

GILBERTSON, Chief Justice.

[¶1] The Estate of Karla McLaren (Estate) appeals an order denying disbursements for video depositions in a medical malpractice action against Dr. Wesley Sufficool. We reverse and remand.

Facts and Procedural History

[¶2] Estate brought a medical malpractice action against Dr. Sufficool in connection with a surgery performed on Karla McLaren. During trial, Estate showed portions of video depositions of Dr. Sufficool and of Karla's treating physician, Dr. Grant. The verdict was for Estate. Estate sought $2,135.26 in disbursements for video depositions of Drs. Sufficool, Grant, and Fitzgibbons.[1] Dr. Sufficool objected based upon the duplication of costs in producing both transcribed and video depositions. A hearing was held. At the close of the hearing, the circuit court granted Estate the transcript costs for the depositions, but not the videographer or video costs. An order denying disbursements for the video depositions was filed on March 3, 2014. Estate appeals.[2]

Issue

[¶3]Whether the circuit court abused its discretion in denying Estate disbursements for the video depositions.

[¶4] This Court " 'review[s] an award of disbursements under an abuse of discretion standard.'" Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 32, 807 N.W.2d 612, 621 (quoting Behrens v. Wedmore, 2005 S.D. 79, ¶ 69, 698 N.W.2d 555, 581). An abuse of discretion " is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable." Thurman v. ...


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