United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE
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.
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.
March 16, 2018, Plaintiff filed a Bill of
Costs. 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.
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.
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).
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
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).
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 (“Concerns regarding
the expense of [expert witness depositions] ...