TOPIC 24

Topic 24.1      Witnesses—Generally

Expert Witness Fees

            In setting an expert witness fee, the LHWCA, at Section 25 provides that “Witnesses summoned in a proceeding before a deputy commissioner or whose deposition are taken shall receive the same fees and mileage as witnesses in courts of the United States.”  Further,  20 C.F.R. § 702.342 provides “Witnesses summoned in a formal hearing before an administrative law judge or whose depositions are taken shall receive the same fees and mileage as witnesses in courts of the United States.”

            The U.S. district courts set expert witnesses fees pursuant to the Federal Rules of Civil Procedure, Rule 26 (b)(4)(C)(i), which requires the deposing party to pay the responding party’s expert a reasonable hourly fee for time spent by the expert in deposition, time spent by the expert traveling to and from the deposition, and time spent in gathering documents responsive to the deposition subpoena.  In re Shell Oil Refinery, Robert Adams, Sr., v. Shell Oil Company, 1992 WL 31867 (E.D. La. 1992) citing United States v. City of Twin Falls, Idaho, 806 F. 2d 862, 879 (9^th Cir. 1986); Goldwater v. Postmaster General of the United States, 136 F.R.D. 37 (D. Conn. 1991).  The deposing party is not responsible to pay the expert for time spent reviewing documents prior to deposition and in preparation for the deposition.  The expert’s compensation shall be limited to a reasonable amount even if it is less than his customary fee.

            In Shell Oil, the district court noted the following factors to be considered in determining the reasonableness of a fee:

(1)  the witness’s area of expertise; (2) the education and training that is required to provide the expert insight which is sought; the prevailing rates of other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area, and (6) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.  

            Failure to comply with a deposition request may subject one to appropriate sanctions pursuant to Section 27 of the LHWCA.  See Topics 27.1.2 ALJ Can Compel Attendance at Deposition; 27.1.3  ALJ Issues Subpoenas, Gives Oaths; and 27.3  Federal District Court Enforcement.

Topic 24.1      Witnesses—Generally

Newport News Shipbuilding & Dry Dock Co. v. Harris-Smallwood, (Unpublished)(No. 02-1590) (4th Cir. July 12, 2004).

            In this unpublished matter involving Sections 12 and 13, the Fourth Circuit provides a good discussion dealing with crediting testimony of witnesses and weighing contradictory evidence and Section 8(f).

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Topic 24.2      Expert Witness

[Ed. Note: The following Black Lung Benefits Act case is included because it may be applicable to Longshore cases. For a thorough discussion, please see the Black Lung portion of this Digest.]

Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003).

            In Black Lung cases, the Sixth Circuit has retreated from its earlier position that the treating physician’s opinion is entitled to controlling weight. [The Longshore Bar has long called this concept of giving controlling weight to the treating physician, the “treating physician rule.”] In its opinion, the Sixth Circuit notes the Supreme Court’s position in Black & Decker Disability Plan v. Nord, 123 S.Ct. 1965 (2003)(Ginsburg, J.) wherein a unanimous Court criticizes the usefulness of automatically granting deference to the opinion of a treating physician.

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