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St. Mary's Law Journal

Wade P. Webster

Abstract

Even with the increasing complexity of litigation and the increased utilization of expert witnesses to provide expensive evidence on narrow scientific and technical issues, Congress still limits compensation of expert witnesses to only forty dollars per day, the same rate as ordinary fact witnesses. The justification for the low rate is that the witness fee statute was not intended by Congress to compensate witnesses fully for their lost time and income. Presumably this same reasoning also applies to expert witnesses. The problem with this reasoning, unlike law witnesses who may be compelled by subpoena, individual litigants must pay the fees charged by experts. Furthermore, plaintiffs may not recoup all of his or her litigation expenses after prevailing at trial if the expert witnesses have cost more than the statutory rate of forty dollars per day. Though this result seems inequitable, proponents of the American Rule would highlight in the converse situation, a losing plaintiff is spared the costs of the defendant’s expert witnesses. Thus, to a certain extent, the plaintiff is not discouraged from pursuing a claim he or she could not otherwise afford to lose. The award in diversity cases of expert witness fees over the forty dollars per day allowed by federal statute presents a classic Erie doctrine problem and requires a Hanna v. Plumber analysis for proper resolution. If a substantive state statute exists, it must be applied. The appellate courts addressing this issue generally hold that if a state expressly mandates the award of full expert witness fees, those fees will be recoverable unless the state statute is merely discretionary. Award of these expert witness fees is consonant with the United States Supreme Court’s analogous policy in Alyeska Pipeline Service v. Wilderness Society, which would allow attorney’s fees in diversity cases.

Publisher

St. Mary's University School of Law

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