The opinion of the court was delivered by: Mcmahon, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' MOTION FOR
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
(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
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
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
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
(4) Fees for exemplification and copies of papers
necessarily obtained ...