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BD v. DEBUONO

November 14, 2001

BD, ET AL., PLAINTIFFS,
V.
BARBARA A. DEBUONO, ET AL., DEFENDANTS. MM, ET AL., PLAINTIFFS, V. SUSANNE D. KAPLAN, ET AL., DEFENDANTS. "EE", ET AL., PLAINTIFFS, V. BARBARA A. DEBUONO, ET AL., DEFENDANTS. "PP", ET AL., PLAINTIFFS, V. BARBARA A. DEBUONO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mcmahon, District Judge.

  MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES

Plaintiffs are infant children diagnosed with autism or pervasive developmental disorder, and their parents. Plaintiffs sued New York City, Westchester County, the Westchester County Department of Health and certain of its ranking officials (collectively, the "County Defendants"), as well as various officials of the New York State Department of Health (collectively, the "State Defendants"), pursuant to § 1983 of the Civil Rights Act, 42 U.S.C. § 1983, alleging violations of due process rights granted to them by the Individuals with Disabilities Education Act, 20 U.S.C. § 1431, et seq. ("IDEA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., New York's Public Health Law § 2540, et seq., and the Fifth and Fourteenth Amendments to the United States Constitution. This Court approved a comprehensive settlement of the case in an oral opinion from the bench on October 19, 2001, and issued a written opinion approving the infant compromise orders on the same day.

Before the Court is plaintiffs motion for attorneys' fees and disbursements in connection with the settlement of this action. In a partial opinion on the record, I have already outlined for the parties the principles I will follow in computing the fee award. I also made a partial award. I write principally to resolve two remaining legal issues — (1) whether expert fees should be awarded to the plaintiffs, and (2) whether Westlaw fees are reimbursable — and also to enter on the record my final calculation of the fee award. The parties should read the last section of this opinion in conjunction with my oral opinion of October 19, 2001.

I. Outstanding Issues Relating to the Fee Award

A. Reimbursement of Expert Fees

Plaintiff seeks $345,043.44 in reimbursement for amounts expended for "experts" utilized in conjunction with this litigation. The fees sought are as follows:

DOAR Associates (Litigation Consultants): $135,475.00 Dr. Richard M. Foxx: $135,832.67 Dr. Gina Green: $65,517.67 Dr. Jerome M. Staller: $8,218.00
(1) The DOAR Fees are Reimbursable, Not as Expert Fees, But as Attorneys' Fees

Plaintiffs will be reimbursed for the entire amount (less 10%) expended on the services of DOAR Communications, the trial preparation consultant. These specialists assisted plaintiffs' attorneys with pretrial preparation and jury selection, provided technological assistance, and worked on mock trials. Plaintiffs' counsel used the services of DOAR to prepare their case for presentation to a jury.

Litigation consultants (also known as litigation support specialists) are trained in various aspects of courtroom practice and procedure. They are consulted by litigators to hone their trial skills in the context of a particular case. It seems to this Court that litigation consultants, used in the manner that plaintiffs' counsel used them here, are the equivalent of additional attorneys or legal para-professionals. The services they provide are not those of an expert witness, which has been the traditional purview of "expert fees." DOAR provided neither substantive testimony nor information relating to the underlying dispute. Therefore, even though they are expert at what they do, they do not fall within the rubric of "experts" as that term traditionally has been used.

If plaintiffs' counsel had organized mock trials themselves, or done their own jury consulting research, the hourly rates they charged for those services would be reimbursable as part of an attorneys' fee award. The fact that counsel chose to engage the services of an independent contractor to perform those same services, rather than assign the same work to employees, does not alter the nature of the services rendered. DOAR's litigation consulting services fall properly under the rubric of attorneys' fees and are a reimbursable expense in a litigation of this magnitude.

Plaintiffs request $135,475.00 for the trial preparation consultant fees. I am reducing that amount by 10%, consistent with my announced decision to reduce attorneys' fees by 10% across the board. Therefore, plaintiffs are awarded $121,927.50, to be paid entirely by the County, since the costs were incurred during Period 3.

(2) Fees of Medical Experts

Plaintiffs retained three experts to opine on issues pertinent to this case and to give testimony at trial. Dr. Richard Foxx, of Help Services, Inc., is a Professor of Psychology at the University of Harrisburg and an Adjunct Professor of Pediatrics at the College of Medicine of the University of Pennsylvania. He issued two reports concluding that the plaintiff children received insufficient applied behavior analysis ("ABA") therapy, and that their long-term prognoses were worse than they would have been had they received this therapy. Dr. Green is the Director of Research for the New England Center for Children, a Professor of Psychiatry and Pediatrics at the University of Massachusetts Medical School, a Clinical Assistant Professor at the College of Pharmacy and Health Sciences at Northeastern University, and an Associate Scientist in the Behavioral Sciences Division of the E.K. Shriver Center for Mental Retardation, Inc. She issued two reports concerning the use of ABA therapy in the treatment of autism, challenging the reasonableness of imposing a limit on the number of hours per week that children with autism are given therapy. Dr. Staller, of the Center for Forensic Economic Studies, issued one report calculating the economic loss to plaintiffs from receiving insufficient ABA therapy. All three of these experts gave depositions regarding their reports. Plaintiffs seek $135,832.67 in reimbursement for fees paid to Dr. Foxx, $65,517.67 for fees paid to Dr. Green, and $8,218.00 for fees paid to Dr. Staller.

There is no question that plaintiffs needed to retain experts to pursue this case, that the experts retained are highly qualified in their fields, and that their testimony would have been reasonably necessary had this matter gone to trial. It is also undisputed that plaintiffs' counsel have paid the experts. The question is whether I am permitted to reimburse them for that payment pursuant to 42 U.S.C. § 1988 (the statute on which plaintiffs rely) or otherwise.

Fees charged by expert witnesses are not considered "taxable costs" under the cost statute, 28 U.S.C. § 1920, which provides that costs include the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained ...

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