Opinion
Civil Action No. 00-2791, Section "R" (2)
July 11, 2002
ORDER AND REASONS
This case was brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., and was tried before me in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Judgment was entered in favor of plaintiff, Pat Fuller, and against the United States on April 8, 2002. Record Doc. No. 137. An amended judgment was entered on May 3, 2002. Record Doc. No. 142. Both judgments ordered the United States to bear all costs of these proceedings.
The prevailing plaintiff submitted an application for bill of costs in the total amount of $13,138.49. Record Doc. No. 140. The United States filed a timely opposition memorandum. Record Doc. No. 143. Fuller filed a memorandum in support of his bill of costs and in response to defendant's opposition memorandum. Record Doc. No. 144.
On May 15, 2002, the Clerk of Court filed her taxation of costs. In her taxation of costs, the Clerk reduced plaintiff's fees for expert witnesses from a requested $10,730.21 to $378.12, and awarded other costs for a total award of $2,890.57. Record Doc. No. 145.
Currently pending before me is plaintiff's Motion to Review Bill of Costs Determination. Record Doc. No. 146. Fuller contests only the Clerk's disallowance of the vast majority of his requested expert witness fees. The United States filed a timely opposition memorandum. Record Doc. No. 147. To the extent that the United States appears in its memorandum to contest some of the other costs awarded to plaintiff, those other costs are not before this court because neither party filed a motion to review them.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that plaintiffs motion is GRANTED IN PART AND DENIED IN PART as follows.
ANALYSIS
Fuller requests review of the findings made by the Clerk to the extent that the decision disallowed the full $10,730.21 in expert witness expenses, which plaintiff asserts he actually incurred in the case. The government opposes plaintiffs motion, arguing that the expert witness fees plaintiff is seeking should not be granted because they exceed the statutory maximum that can be recovered for witness fees. The government also objects to plaintiffs request to be reimbursed for an expert witness fee to depose plaintiffs own expert witness, Dr. David Reiss.
Plaintiff itemizes his expert witness expenses, totaling $10,730.21, as follows:
Dr. Robert Steiner Trial Testimony $1,500.00
Dr. Don Underwood Trial Testimony $3,000.00
Dr. Randy Rice Trial Testimony $1,351.77
Dr. Cornelius Gorman Trial Testimony $1,734.47
Dr. David Reiss Trial Testimony $1,306.47
Dr. John Simonanok Trial Testimony $450.00
Dr. Joseph Serio Trial Testimony $600.00
Dr. David Reiss Deposition Testimony + $787.50
TOTAL WITNESS FEES $10,730.21
Federal Rule of Civil Procedure 54(d) allows costs to be taxed against the losing party, including the United States:
Except when express provision therefore is made either in a statute of the United States or in these rules, costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law.
Fed.R.Civ.P. 54(d) (emphasis added). In this case, the court entered judgment for plaintiff and cast the United States with all costs, pursuant to Rule 54(d).
Plaintiff asserts that his expert witness fees totaling $10,730.21 should be taxed in full against the United States under 28 U.S.C. § 1920, which states, in relevant part: "A judge or clerk of any court of the United States may tax as costs the following: (3) Fees and disbursements for . . . witnesses;. . . ." 28 U.S.C. § 1920(3). Section 1920 contains no other provision concerning expert witnesses, except for court-appointed experts, which are not at issue here.
Fuller correctly contends that 28 U.S.C. § 2412 addresses costs that may be awarded against the United States as a party generally. That statute provides, in relevant part:
Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in Section 1920 of this tide . . . may be awarded to the prevailing party in any civil action brought . . . against the United States. . . . A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.
Id. § 2412(a)(1) (emphasis added). Thus, this statute specifically directs the court to award only those costs enumerated in Section 1920.
Further, Rule 54(d) states that "costs against the United States . . . shall be imposed only to the extent permitted by law." Therefore, a prevailing party may recover costs against the United States only to the extent authorized by statute. Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993). Sections 2412 and 1920 permit the taxation of witness fees as costs against the United States. A district court "may not award costs omitted from the list" in Section 1920. Id. (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987)).
The amount of fees to be paid for a witness to attend trial or a deposition is governed by 28 U.S.C. § 1821, which provides in relevant part:
(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, . . . or before any person authorized to take his deposition pursuant to any 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. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.28 U.S.C. § 1821(a)(1), (b) (emphasis added).
The Supreme Court has offered a clear interpretation of this statute, which controls awards of expert witness fees in federal court. See Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 463, 465 (11th Cir. 1996) (applying the Crawford and statutory standard). "When a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary." Crawford, 482 U.S. at 439; Section 1821(b) "specifies the amount of the fee that must be tendered to a witness, § 1920 provides that the fee may be taxed as a cost, and Rule 54(d) provides that the cost shall be taxed against the losing party unless the court otherwise directs." Id. at 441. Plaintiff concedes in his memorandum that he has located no cases decided under the FTCA, and my own research has located none, which apply a different rule than that articulated in Section 1821(b) and in Crawford for expert witness fees in FTCA cases. Accordingly, Section 1821(b) and Crawford control the instant motion.
I find that the Clerk of Court correctly awarded $378.12 to plaintiff for expert witness fees. The Clerk allowed $40 per expert witness, plus expenses for mileage incurred by each witness. This interpretation of Section 1821 is consistent with the Supreme Court's decision in Crawford and subsequent Fifth Circuit cases. 28 U.S.C. § 1821(b) (c)(2) Crawford, 482 U.S. at 445; Holmes v. Cessna Aircraft Co., 11 F.3d 63, 65 (5th Cir. 1994); Salinas v. Rodriquez, 963 F.2d 791, 795 (5th Cir. 1992). As the Fifth Circuit has plainly stated, "expert fees are not recoverable" under Section 1920. Coats, 5 F.3d at 891 (citing Crawford, 482 U.S. at 445). Accordingly, plaintiff's motion to review the Clerk's bill of costs determination is denied, with the following exception.
This section states that a "mileage allowance . . . shall be paid to each witness who travels by privately owned vehicle." Id. § 1821(c)(2).
The same statute, 28 U.S.C. § 1821(a)(1), requires that plaintiff may only recover the statutory maximum fee of $40 set by Section 1821(b) for the attendance of Dr. Reiss at his deposition. 28 U.S.C. § 1821(a)(1); Morrison, 97 F.3d at 463. The Clerk previously awarded Fuller nothing for Dr. Reiss's witness fee for attending his deposition. Accordingly, plaintiff's motion is granted in part, as he is entitled to receive $40 (plus mileage expense) for Dr. Reiss's attendance at the deposition.
CONCLUSION
Accordingly, IT IS ORDERED that plaintiff's Motion to Review Bill of Costs Determination is GRANTED IN PART to award an additional $40 witness fee plus mileage expense to reimburse plaintiff for Dr. Reiss's attendance at his deposition. The remainder of the motion is DENIED.