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Abernathy v. Eastern Illinois Railroad Co.

United States District Court, C.D. Illinois, Springfield Division

May 15, 2018

MARVIN ABERNATHY, Plaintiff,
v.
EASTERN ILLINOIS RAILROAD COMPANY Defendant.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Defendant Eastern Illinois Railroad Company's Objection to Bill of Costs (d/e 69). On May 4, 2018, the Court held a hearing on the Objection. Because Plaintiff Marvin Abernathy is not entitled to recover the expert witness fees, the Objection is GRANTED.

         I. BACKGROUND

         On January 18, 2018, a jury returned a verdict in favor of Plaintiff and against Defendant in the amount of $525, 000. Judgment was entered on January 22, 2018. On February 15, 2018, Defendant filed a Motion for Judgment as a Matter of Law or, Alternatively, Motion for New Trial (d/e 57), which the Court denied on April 13, 2018.

         On March 16, 2018, Plaintiff filed a Bill of Costs.[1] Plaintiff seeks costs totaling $8, 166.44, which includes $3, 800 for fees of witnesses. Specifically, Plaintiff seeks witness fees Plaintiff paid to Dr. Thomas Lee for his depositions on August 25, 2016 and October 5, 2017 and to Dr. Renu Bajaj for her deposition on October 25, 2017. Plaintiff presented the testimony of both doctors at trial in the form of those depositions. Plaintiff's counsel confirmed at the May 4, 2018 hearing that the three depositions for which Plaintiff seeks witness fees were depositions sought by Plaintiff.[2]

         Defendant objects to Plaintiff's request for witness fees in the amount of $3, 800. Defendant argues that witness fees for expert witnesses cannot be taxed in excess of the amount allowed by 28 U.S.C. § 1821, which is $40, unless the witness is a court-appointed expert. According to Defendant, taxable witness fees are limited to $40 each for Dr. Lee's two depositions and Dr. Bajaj's deposition, for a total of $120.

         II. ANALYSIS

         Under Federal Rule of Civil Procedure 54(d)(1), costs other than attorney's fees shall be allowed to the prevailing party unless a federal statute, the Federal Rules of Civil Procedure, or a court order provides otherwise. Fed.R.Civ.P. 54(d)(1). While the presumption is that costs will be awarded to the prevailing party, a district court has the discretion to direct otherwise. Rivera v. City of Chi., 469 F.3d 631, 634 (7th Cir. 2006).

         Awardable costs under Rule 54 are listed in 28 U.S.C. § 1920, which includes costs for fees and disbursements for printing and witnesses. 28 U.S.C. § 1920(3); see also 28 U.S.C. § 1920(6) (providing for compensation of court appointed experts). Section 1821(a)(1) and (b) of Title 28 of the United States Code limits witness fees for attendance at trial or deposition to $40:

(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.
(b) A witness shall be paid an attendance fee of $40 per day for each day's attendance.

28 U.S.C. § 1821(a)(1), (b); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987) (holding that “a federal court may tax expert witness fees in excess of the $30-per-day limit [(now $40)]set out in § 1821(b) only when the witness is court-appointed”).

         Defendant argues that, pursuant to § 1821, Dr. Lee and Dr. Bajaj are only entitled to the $40 witness fee for attendance at their depositions. Plaintiff disagrees, relying on an Eighth Circuit case, Stanley v. Cottrell, Inc., 784 F.3d 454 (8th Cir. 2015), which held that Federal Rule of Civil Procedure 26(b)(4)(E) requires that a district court order the party seeking discovery to pay the expert a reasonable fee for time spent responding to discovery. Pl. Mem. at 5; see also Stanley, 784 F.3d at 464-65 (finding the district court did not err in awarding the defendant $975 in expert witness fees for the costs related to the deposition of the plaintiff's expert).

         Federal Rule of Civil Procedure 26(b)(4)(A) provides that “a party may depose any person who has been identified as an expert whose opinion may be presented at trial.” Rule 26(b)(4)(E) provides that the district court “must require that the party seeking discovery . . . pay the expert a reasonable fee for time spent in responding to discovery” unless manifest injustice would result. Fed.R.Civ.P. 26(b)(4)(E); See also Advisory Committee Notes, 1993 Amendment (‚ÄúConcerns regarding the expense of [expert witness depositions] ...


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