Sixth Circuit Holds Expert Witness Fees Are Not Recoverable as Costs Under Civil Rule 54(d)

On January 23, 2007, the Sixth Circuit held in L & W Supply Corp. v. Acuity, No. 05-6845 (the slip opinion posted on the Court's website can be found here), "that expert witness fees may not be taxed as costs at a court’s discretion under Rule 54(d) [of the Federal Rules of Civil Procedure] because [28 U.S.C.] § 1920 does not provide for them," and thus a successful litigant "is not entitled to recover expert witness fees (i.e., the hourly rate charged for the expert’s time and services)" but is "entitled as a matter of course to recover the witness costs provided for in [28 U.S.C.] § 1821, which are largely compensatory in nature."

The federal statute for witness fees, 28 U.S.C. § 1821, to which the Court refers provides in pertinent part:

(b)    A witness shall be paid an attendance fee of $40 per a day for each day’s attendance . . .

(c)    (1)    A witness who travels by common carrier shall be paid for the actual             expenses of travel . . .

(2)    A travel allowance . . . shall be paid to each witness who travels by privately-owned vehicle . . .

(d)    (1)    A subsistence allowance shall be paid to a witness when an overnight stay is required . . .

Our thanks to Tom Theado of the class action firm, Gary Naegele & Theado, for bringing this decision to our attention.

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