as costs pursuant to 28 U.S.C. § 1920(4). However, the Clerk is again limited regarding these costs. Pursuant to the limitation on its authority set forth in Clerk's Supplemental Manual Issuance No. 33, the Clerk may assess a maximum of $ 100.00 for photocopying. Therefore, Plaintiff was disallowed $ 334.75 of his requested costs. This expense is not itemized in either Plaintiff's petition for costs or in the Bill of Costs submitted to the Clerk. The Court believes that such itemization is not necessary in light of the progress of the case before this Court and the reasonableness of the amount requested. The reimbursement request is not unreasonable given the fact that this case involved defending against a motion for summary judgment, an appeal of the Court's decision and further proceedings until settlement was reached almost upon the eve of trial.
Therefore, it is the Court's determination that it "should not second-guess the attorneys' decision" regarding copies of papers and documents. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 642 (6th Cir. 1979). The case was competently and successfully resolved in favor of Plaintiff. The additional amount of $ 334.75 also shall be assessed in favor of Plaintiff.
Expert Witness Fees
In general, federal courts have no power to tax as costs the compensation of expert witnesses in excess of the per diem and per mile allowances provided to witnesses in 28 U.S.C. § 1821. Illinois v. Sangamo Construction Co., 657 F.2d 855 (7th Cir. 1981). 28 U.S.C. § 1821 contemplates witness expenses in cases which proceed to trial. Since this case did not involve a trial, Plaintiff is not entitled to reimbursement under the statute.
However, federal courts are not prevented from exercising their equitable discretion to tax such fees where: "(1) an expert witness is necessary to the presentation of a party's claim or the Court is confronted with exceptional circumstances; and (2) the party has made prior application to the Court setting forth the nature and importance of the testimony of such experts; and (3) the expense is reasonable and not excessive." Cagle v. Cox, 87 F.R.D. 467, 469 (E.D. Va. 1980). While the controlling case in this Circuit, Quy v. Air America, Inc., 215 U.S. App. D.C. 181, 667 F.2d 1059 (D.C. Cir. 1981), stopped short of requiring that prior application be made, the Court must find "exceptional circumstances" before assessing witness fees in excess of the amount under the statute. Such a finding of "exceptional circumstances" is to be confined to those rarest of cases in which the Court requires the testimony or aid of "a specially qualified expert witness who will furnish information or evidence not otherwise reasonably accessible to the Court and whose appearance is determined to be critically important to the resolution of the case." Quy v. Air America, Inc., 667 F.2d at 1066, n.11. The Circuit further noted that if an expert is "determined to be critically important to the resolution of the case, then the Court should have approved or required his testimony on these terms in advance. Absent such findings, there is no justification for an award of costs based upon special fees for 'expert witnesses' not otherwise allowable to witnesses under 28 U.S.C. § 1821." Id. at 1068, n.15.
Plaintiff made no effort to secure the advance approval of the Court and there is nothing in the record to indicate that the efforts of the two experts were unusual or critically important to the resolution, i.e., settlement of Plaintiff's case. In fact, there is no indication that the experts provided more than mere "investigatory services," were of value to the development of Plaintiff's case or influenced the settlement in any way. In short, documentation for the expert fees is sadly lacking.
The Court recognizes that this case did not proceed to trial where the use of and need for expert witnesses would have been more readily apparent. Nevertheless, if the Court is expected to award costs for their compensation, some evidence must be found in the record indicating that the experts were influential in the settlement or in obtaining "substantial relief" for Plaintiff. There is none. Based upon this record, it is impossible for the Court to find the "exceptional circumstances" which are requisite to an award of expert witness fees in excess of the statutory amounts found in 28 U.S.C. § 1821.
In conclusion, the record in this case remains devoid of evidence which would support an award of expert fees in spite of the fact that Plaintiff has now had three opportunities to provide such documentation. He had an opportunity once with his original petition, twice with his motion for reconsideration and Bill of Costs and thrice with this motion to review the taxation of costs. The Court is not inclined to grant any party unlimited opportunity to buttress his claims. Recovery for expert fees in the amount of $ 3,085.00 was properly disallowed by the Clerk and, since the record remains without evidence to support "exceptional circumstances," will not be assessed by the Court.
Therefore, for the foregoing reasons, Plaintiff's Motion for Review of Taxation of Costs is granted in part and denied in part. An appropriate Order accompanies this Memorandum.
In accordance with the Memorandum entered this date in the above-captioned action, it is by the Court this 29th day of January, 1985,
ORDERED, that Plaintiff's Motion for Review of Taxation of Costs be and hereby is GRANTED with respect to the request for reimbursement of photocopying expenses and costs associated with obtaining copies of depositions; and it is
FURTHER ORDERED, that the Motion is DENIED with respect to the request for expert witness fees; and it is
FURTHER ORDERED, that Defendant shall be taxed $ 536.51 for the additional costs for photocopying and depositions incurred by Plaintiff.
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