Expert Witness FeesPlaintiff was injured while working for Defendant Railroad Company. He sued under the Federal Employers’ Liability Act (FELA), alleging that the Railroad negligently failed to provide reasonably safe working conditions by failing to provide appropriate equipment for the job he was doing when he was hurt. 

A jury awarded  him $525,000 in damages. The Railroad moved for judgment as a matter of law or a new trial. The district court denied both requests, and the Railroad appealed, raising several issues. Plaintiff filed a cross-appeal asserting that the district court erred by not awarding him sufficient costs to cover his expert witness fees.  

Plaintiff claimed for $3,800 in fees that he paid to his treating physicians for taking their video depositions, which were presented at trial. The Railroad objected, arguing that 28 U.S.C. § 1821(b) limits witness fees to $40 per day. The district court agreed with the Railroad. 

A panel of Circuit Judges Kanne, Sykes, and Hamilton reviewed the district court’s award of costs for an abuse of discretion. The Court reviewed legal questions related to the cost award de novo. 

Seventh Circuit Judge David Hamilton noted in his opinion that the doctors’ video depositions were sought by Plaintiff himself, and he presented them as evidence at trial. Plaintiff argued that Rules 26(b)(4)(E)(i) and 54(d)(1) work together to supersede the $40-per-day limit of § 1821 and allow him, as the prevailing party, to recover the entire “reasonable fee” he paid his expert witnesses for their depositions. 

But the Seventh Circuit panel affirmed the district court’s denial of the higher witness fees. Judge Hamilton held that Plaintiff‘s argument was contrary to the Supreme Court’s interpretation of the interaction between these rules set discussed in Crawford Fitting Co. v. J. T. Gibbons (1987), and was not supported by any Seventh Circuit precedent. The district court properly limited the witness fees the Railroad must pay to $40 per witness per day. 

Judge Hamilton acknowledged that in the Seventh Circuit decision of Halasa v. ITT Educational Services, Inc. (2012), the Court affirmed the district court’s ruling that the prevailing defendant could be reimbursed for fees related to the deposition of  an expert witness in excess of $40 per day under Rule 26(b)(4)(E)(i). The Halasa Court held that the “reasonable fee” requirement in Rule 26(b)(4)(E)(i) can, in certain cases, supersede the specific payment schedule in § 1821(b). However, the district court decision in that case was based on the fact that the deposition of that expert witness—while initially paid for by the defendant—had been taken by the plaintiff. The defendant in Halasa hadn’t insisted that the plaintiff pay its witness at the time of the deposition, as it could have under Rule 26(b)(4)(E)(i). Rather, the defendant paid its own witness his usual expert fee for time spent on the deposition the plaintiff had taken. In Halasa, the defendant delayed until its final bill of costs to request that payment under Rule 26(b)(4)(E)(i). 

Thus, Judge Hamilton  explained, because the defendant in Halasa was the prevailing party and because plaintiff, as the party who had sought the deposition of the defendant’s expert, had an obligation under the Rule 26(b)(4)(E)(i) to pay the costs of that deposition, the district court was allowed to order that the defendant be awarded the amount of reasonable witness fees it actually  paidregardless of the fee limits set forth in § 1821(b).  

But in this case, Plaintiff wasn’t asking that the costs of the depositions be reimbursed under Rule 26(b)(4)(E)(i). Instead, he sought to have the costs of deposing his own expert witnesses reimbursed under Rule 54(d)(1) alonea question not addressed in Halasa. 

Judge Hamilton wrote that this case was much closer to the Supreme Court’s decision in Crawford Fitting, which rejected Plaintiff‘s interpretation of these rules. The issue in that case was whether a party could be reimbursed under Rule 54(d)(1) for the higher expert fees it had paid to have its own expert witness testify at trial. The Court rejected that claim, holding that 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.The Supreme Court found that the rule and statute did not conflict, and that although Rule 54(d)(1) permits prevailing parties to recover costs, § 1821(b) places a limit on the amount to be recovered.  

Plaintiff in this case argued that the panel should distinguish Crawford Fitting and instead follow and extend the reasoning of the Eighth Circuit in Stanley v. Cottrell, Inc., which allowed the prevailing party to recover the full expert witness fees it actually paid to the opposing party under Rule 26(b)(4)(E)(i) during discovery to take the deposition of his expert witness. Whether Stanley was correct or not on its own facts, its reasoning didn’t extend to the case before the panel, Judge Hamilton held, where the prevailing party sought to recover full expert fees for the depositions of his own expert witnesses. Judge Hamilton said that this was Crawford Fitting, except that here the panel addressed expert depositions rather than expert trial testimony. The judge went on to opine that it would be a mistake to limit Crawford Fitting on that basis. If the panel held that prevailing parties could recover under Rule 54(d) the full costs of deposing their own expert witnesses before trial, but not of calling those expert witnesses to testify live at trial, the Court would create an incentive for parties to offer expert depositions at trial in lieu of live expert testimony.  

Nothing in the text or logic of the rules calls for such a perverse incentive, and we see no persuasive reason to distinguish this case from Crawford Fitting,” Judge Hamilton held. 

The judgment of the district court and its award of costs were affirmed.