Abernathy v Eastern Illinois Railroad Company

Filing 79

OPINION entered by Judge Sue E. Myerscough on 5/15/2018. Defendant's Objection to Bill of Costs, d/e 69 is GRANTED. Plaintiff is only entitled to witness fees totaling $120, not $3,800. The Court awards costs to Plaintiff in the total amount of $4,486.44. (MAS, ilcd)

E-FILED

Friday, 18 May, 2018 09:48:34 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARVIN ABERNATHY,
Plaintiff,
-vsEASTERN ILLINOIS
RAILROAD COMPANY
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 15-cv-3223

OPINION

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,
Page 1 of 8

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
The Bill of Costs is due within 30 days of the entry of judgment. CDIL-LR
54.1(a). Filing a timely motion under Rule 59 suspends the judgment’s finality,
which means the time for filing the Bill of Costs does not begin until the district
judge resolves the Rule 59 motion. Nat’l Organization for Women, Inc. v.
Scheidler, 750 F.3d 696, 698 (7th Cir. 2014). Defendant filed a timely Rule 59
motion, which the Court denied in April 13, 2018.
1

Defendant deposed Dr. Lee on July 26, 2016 and paid Dr. Lee’s witness fee
for that deposition.

2

Page 2 of 8

witnesses cannot be taxed in excess of the amount allowed by 28
U.S.C. § 1821, which is $40, unless the witness is a courtappointed 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:

Page 3 of 8

(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 courtappointed”).
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

Page 4 of 8

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 (“Concerns regarding the expense of [expert witness
depositions] should be mitigated by the fact that the expert’s fees
for the deposition will ordinarily be borne by the party taking the
deposition.”).
Defendant argues that the United States Supreme Court’s
decision in Crawford controls. In Crawford, the Supreme Court
held that “absent explicit statutory or contractual authorization for
the taxation of expenses of a litigant’s witness as costs, federal
courts are bound by the limitations set out in 28 U.S.C. § 1821 and
§ 1920.” Crawford, 482 U.S. at 445.

Page 5 of 8

However, the Seventh Circuit found explicit statutory
authorization for expert witness fees in Rule 26 in Halasa v. ITT
Educ. Servs., Inc., 690 F.3d 844, 852 (7th Cir.2012). In Halasa, the
Seventh Circuit discussed the legislative history of § 1821 and its
1959 amendment, as well as Rule 26 and its 1993 and 2010
amendments. Halasa, 680 F. 3d at 850. The Court focused on the
language in § 1821 stating, “[e]xcept as otherwise provided by law.”
Id. at 852. The Court found that such language supported the
interpretation that “Rule 26, the later-enacted of the two, does
‘otherwise provide[ ].’” Id. at 852. Consequently, the Seventh
Circuit concluded that “the flexible authorization for a reasonable
fee contained in Rule 26 supersedes the specific schedule outlined
in § 1821(b).” Id. That is, “certain expenses and fees associated
with experts are not capped by § 1821 when recovered under Rule
26.” Id. Moreover, the Seventh Circuit held that a party need not
seek fees under Rule 26 until the party files the Bill of Costs. Id.
(agreeing “with the district court that the fact that [the defendant]
did not seek these fees until it filed its bill of costs is of no moment;
its request was timely”).

Page 6 of 8

Applying Rule 26(b)(4)(E) here, the question is whether
Defendant was the party seeking discovery such that Defendant
must pay the reasonable fees of Dr. Lee and Dr. Bajaj for the
Augugst 25, 2016, October 5, 2017, and October 25, 2017
depositions. See Poulter v. Cottrell, Inc., No. 12-cv-1071, 2017 WL
2445129, at *7 (N.D. Ill. June 6, 2017) (Tharp, Jr., J.) (holding that
the defendant could only recover the $40 witness fee provided by
§ 1821; the defendant deposed the doctor and used his testimony at
trial; therefore, it was the defendant who sought the discovery and
who must pay the reasonable costs under Rule 26), appeal filed.
Based on the parties’ representations at the May 4, 2018 hearing,
Plaintiff was the party seeking the depositions of Dr. Lee on August
25, 2016 and October 5, 2017 and Dr. Bajaj on October 25, 2017.
Therefore, Defendant was not the party seeking discovery and is not
required to pay those fees under Rule 26(b)(4)(E). Plaintiff is only
entitled to the $40 witness fee for each of those depositions
pursuant to 28 U.S.C. § 1821(b). Although this Court believes the
better rule would be to allow the prevailing party to recover all
expert fees as costs, the Court is constrained by the statute.

Page 7 of 8

III. CONCLUSION
Defendant’s Objection to Bill of Costs (d/e 69) is GRANTED.
Plaintiff is only entitled to witness fees totaling $120, not $3,800.
The Court awards costs to Plaintiff in the total amount of
$4,486.44.
ENTERED: May 15, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 8 of 8