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BASF CORP. v. OLD WORLD TRADING CO.

August 30, 1993

BASF CORPORATION, Plaintiff,
v.
THE OLD WORLD TRADING COMPANY, Defendant.


Leinenweber


The opinion of the court was delivered by: HARRY D. LEINENWEBER

I. INTRODUCTION

 II. BACKGROUND Plaintiff's original request for fees can be divided into two major categories: attorney's fees and "out of pocket litigation expenses." The two categories themselves can be further broken down as follows: ATTORNEY'S FEES Baker & McKenzie $ 1,929,107 Pennie & Edmonds 58,436 OUT OF POCKET LITIGATION EXPENSES Paralegal Fees $ 376,775 Expert Witnesses Coopers & Lybrand $ 856.172 Dennis Dugan 297,947 Russel Fay 52,258 LEXIS $ 384,506 Travel Expenses $ 77,028 Long Distance Telephone $ 19,247 Postage 3,930 Messenger 4,271 TOTAL $ 4,059,677

 Rather than attack individual receipts and billing practices of plaintiff, a task which would be extremely arduous for defendant in a long, detailed case such as this (and equally arduous for the court to review), defendant has raised five major challenges to plaintiff's fee petition.

 First, defendant contends that plaintiff is not entitled to the $ 1,206,377 in witness fees under the Lanham Act. Second, defendant argues that plaintiff should be denied the $ 58,436 it seeks in attorney's fees for work done by the firm of Pennie & Edmonds, on the ground that such recovery is inconsistent with plaintiff's chief legal counsel's professed expertise in the matters involved in this litigation. *fn1" Third, defendant argues that plaintiff's LEXIS expenses (money expended for the creation and operation of a private computerized database) should be disallowed because such expenses are not related to legal research, are not legal fees, and are duplicative of costs already awarded plaintiff by the court. Fourth, defendant contends that plaintiff should not be awarded prejudgment interest on the attorney's fees. Finally, defendant contends that the court should discount attorney's fees because of plaintiff's alleged attempt to bankrupt defendant. Defendant supports its arguments that the Fee Petition submitted by plaintiff should be whittled down by applying the "sampling method" to some of the fees sought by plaintiff. Defendant argues that its sampling of plaintiff's fees reveals the unreasonableness of the Fee Petition.

 The court now turns its attention to each of these arguments.

 III. ANALYSIS

 A. Expert Witness Fees

 Plaintiff argues that it is entitled to $ 1,206,377 in expert witness fees under the Lanham Act. Plaintiff argues that the award of such fees is necessary "to effectuate the equitable relief fashioned by this court."

 The Lanham Act, however, does not explicitly provide for the award of witness fees. The Lanham Act states, "the court in exceptional circumstances may award reasonable attorney fees to the prevailing party." 15 U.S.C. § 1117(a). There is no mention of recovery for expert witness fees in any part of section 1117, which specifically allows for damages and costs in addition to attorney's fees.

 Defendant, relying on the Supreme Court's decision in West Virginia University Hosp., Inc. v. Casey, 499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991), argues that this failure specifically to permit the recovery of expert witness fees means that such fees are not recoverable under the Lanham Act.

 In West Virginia University Hosp., West Virginia University Hospital ("WVUH") filed suit in federal court against the Governor of Pennsylvania under 42 U.S.C. § 1983. WVUH challenged the Medicaid reimbursement schedules promulgated by the Commonwealth of Pennsylvania for services provided by WVUH to Pennsylvania residents.

 WVUH prevailed at trial and the district court awarded fees in accordance with 42 U.S.C. § 1988. West Virginia University Hosp., Inc., 499 U.S. 83, 111 S. Ct. 1138, 1140, 113 L. Ed. 2d 68. Included in these fees was more than $ 100,000 in "fees attributable to expert services." Id. The Third Circuit disallowed the recovery of the expert fees save to the extent that they "fell within the $ 30-per-day fees for witnesses prescribed by 28 U.S.C. § 1821." Id. The West Virginia court affirmed the decision of the Third Circuit.

 The West Virginia court noted that while section 1988 was a fee shifting provision, it referred only to "attorney's fees" and made no mention of expert witness fees. Id. at 1141. This was in contrast to 34 statutes in ten different titles of the United States code identified by the Court, a number of which were enacted or amended around the same time that section 1988 was enacted, which "explicitly shift attorney's fees and expert witness fees." Id. at 1142.

 The West Virginia court relied on its earlier decision in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987), in coming to its decision. In Crawford, the Supreme Court held that 28 U.S.C. §§ 1821(b) and 1920(3) "define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further." West Virginia, 111 S. Ct. at 1141. The Crawford court held, "when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limits of § 1821(b), absent contract or explicit statutory authority to the contrary." Crawford Fitting Co., 482 U.S. at 439, 107 S. Ct. at 2496.

 Section 1821(b) provides that in regard to witness fees authorized under 28 U.S.C. § 1920(3), "[a] witness shall be paid an attendance fee of $ 40 per day of each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance."

 Plaintiff argues that the Supreme Court's decision in West Virginia was limited to section 1988 and thus does not preclude the award of expert witness fees under the Lanham Act. The court disagrees with plaintiff's interpretation of West Virginia. True, the West Virginia court specifically addressed the issue of whether expert witness fees were recoverable under section 1988 and did not interpret the Lanham Act. However, in unequivocally ruling that expert witness fees were not recoverable under section 1988, the Supreme Court provided this and all other courts with a methodology which may be used to analyze claims for expert witness fees brought under other fee shifting statutes. The statute at issue in this case, the Lanham Act, provides for the shifting of attorney's fees from the prevailing to the losing party. However, the Lanham Act, like section 1988, makes no mention of expert witness fees. The Supreme Court in West Virginia clearly stated that "statutory usage" showed "beyond question that attorney's fees and expert fees are distinct items of expense." West Virginia, 111 S. Ct. at 1143. Where Congress has repeatedly drafted statutes that explicitly provide for the shifting of both attorney's fees and witness fees, courts should ...


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