by David M. Reutter
On July 21, 2022, the U.S. Court of Appeals for the Seventh Circuit modified a judgment against a prisoner in a civil rights lawsuit he filed and lost against a doctor at Indiana’s LaPorte County Jail (LPCJ). The Court capped the cost amount of a witness’ fee that the defendant doctor could recover at the statutory maximum of $40. The judgment was affirmed in all other respects.
Before the Court was the appeal of David Lane, Jr., an Indiana prisoner who brought claims related to events while held at LPCJ. In a suit filed in federal court for the Southern District of Indiana, he alleged the jail’s Dr. Michael Person was deliberately indifferent to his serious medical need by failing to order surgery for an acoustic neuroma, a non-cancerous tumor that Lane subsequently had removed.
Person deposed Dr. Rick Nelson, who treated Lane. He testified that Person appropriately addressed Lane’s condition by ordering multiple MRIs and a consultation with a specialist. The district court determined that no reasonable factfinder could find Person liable on March 23, 2021. It then denied Lane’s motion to reconsider that summary judgment on July 19, 2021. Person filed a bill of costs under Federal Rule of Civil Procedure 54(d), requesting $4,017.59. Of that, $2,750 was a one-day witness fee for Nelson. Lane objected, arguing his case had merit and he should have won. Nevertheless, the district court granted Defendant costs for the amount requested on September 13, 2021.
Lane filed his appeal four days later. But because that was more than 30 days after the district court denied the motion to reconsider summary judgment, it was too late to appeal that decision. The Seventh Circuit, however, had jurisdiction to review the cost award.
Analyzing that, the Court recognized that 28 U.S.C. § 1920 allows a prevailing party to recover costs, including witness fees. But the fee recovery for Nelson was limited by 28 U.S.C. § 1821 to $40 for his single day testimony. No other authority allows more, the Court said.
Person countered that Nelson’s fee was recoverable because he was an expert under Federal Rule of Civil Procedure 26. But the Court said it found nothing to support that Nelson was disclosed as an expert. The Court distinguished this case from Halasa v. ITT Edu Servs., Inc., 690 F.3d 844 (7th Cir. 2012), which allowed a plaintiff to recover costs of deposing a defendant’s expert. That’s because a party’s own expert witness fee is generally not recoverable as a cost, as laid out in Abernathy v. E. Ill. R.R. Co., 940 F.3d 982 (7th Cir. 2019).
As such, the fee for Nelson was modified to $40, reducing Person’s cost recovery to a total of $1,307.59. The judgment was affirmed in all other respects. See: Lane v. Person, 40 F.4th 813 (7th Cir. 2022).
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