Nontestimonial Expert Costs Cannot Be Recouped Under FLSA.
A colleague that co-contributor Mike worked with at a past law firm called and asked if expert witness fees for nontestimonial work were recoverable by a plaintiff in an action brought under the Fair Labor Standards Act of 1938 (FLSA), given that 29 U.S.C. § 216(b) provides that a prevailing plaintiff may be reimbursed for “a reasonable attorney’s fees … and costs of the action.”
The answer appears to be “no.”
West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 86-87 (1991) concluded that similar language in the federal civil rights fee-shifting provision (42 U.S.C. § 1988) conveys no authority to shift expert fees. Similarly, the word “costs” had to be interpreted in line with 28 U.S.C. § 1920, and cannot be read to cover expert fees. Id. at 87 n. 3. The reasoning in Casey has been extended to reach the same result with respect to nontestimonial expert witness fees under the FLSA fee-shifting provision. See Bankston v. State of Illinois, 60 F.3d 1249, 1257 (7th Cir. 1995); Hampton v. American Plumbing & Sewer, Inc., 1996 WL 479227 at **2-3 (7th Cir. Aug. 21, 1996); accord, Gray v. Phillips Petroleum Co., 971 F.2d 591, 592, 594-595 (10th Cir. 1992).
Not all is lost. A prevailing plaintiff can recover the per diem witness fee of $40 per day payable to a testifying expert witness. A little bit of a bone, but not quite the same as the nontestimonial expenses—which usually are the bulk of expert costs incurred by plaintiffs.