Bad Faith Expert Not Reimbursable in Sixth Circuit, Court Holds.
Acuity Insurance wanted to be reimbursed for the money it paid to its Expert Witness to defend a Bad Faith Claim in Federal Court. "This amount included charges for telephone calls, document review, drafting the expert report, preparing for the deposition, and time spent during the actual deposition." In a recently reported decision, the Sixth Circuit Court of Appeals said absolutely not. L and W Supply_Corp. v. Acuity (6th Cir. Case No. 05.6845, Opinion Filed Jan. 23, 2007).pdf. This is a link to the publicly available official web site. Access to this reported decision is also available by subscription for example to Westlaw, or 475 F.3d 737.
The Sixth Circuit applied settled Federal law. "Prevailing parties may recover certain allowable, reasonable, and necessary costs, pursuant to Federal Rule of Civil Procedure 54(d). The prevailing party may recover fees for witnesses under 28 U.S.C. § 1920(3). Available witness expenses only include attendance, travel, and subsistence fees as specified in 28 U.S.C. § 1821." First paragraph in Section III of official Sixth Circuit opinion; 475 F.3d at 738.
"[W]e hold that expert witness fees may not be taxed as costs at a court's discretion under Rule 54(d) because § 1920 does not provide for them. Therefore, Acuity is not entitled to recover expert witness fees (i.e., the hourly rate charged for the expert's time and services). It is, however, entitled as a matter of course to recover the witness costs provided for in § 1821, which are largely compensatory in nature." Final paragraph of Section III of the Sixth Circuit's official opinion; 475 F.3d at 741.
Careful attention should be paid to the bases for the Sixth Circuit's holding and the bases on which the Insurance Company requested reimbursement for its Expert Witness' hourly rate charges in this case.
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