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The Rough Notes Company Inc.



August 26
07:05 2021

Fair pay for expert witnesses

On February 15, 2013, William Precht Jr. was applying herbicide to an agriculture field using an aircraft owned by Riceland Aviation, Inc. Adjacent to the field was a guyed tower owned by GTP Infrastructure, LLC, which was not equipped with any visibility-enhancing markers. Precht could not see the unmarked guy wires and struck a wire with the aircraft. The wire strike caused the total loss of the aircraft and the death of Precht. Riceland filed suit for damages against GTP and its insurer for the loss of the aircraft. The jury found that GTP was 79% at fault and awarded Riceland $509,660.26. GTP filed a suspensive appeal that has not been ruled upon.

Riceland filed a motion to fix costs, along with a memorandum in support that outlined the expert witness fees and other out-of-court litigation costs. Attached to the memorandum were detailed invoices of the time billed by each of its two expert witnesses. In the memorandum, Riceland argued that its out-of-court costs included $10,062.49 in total costs for Dr. Post, $5,243.65 in total costs for Mr. Shattuck, $2,895.20 in trial exhibit and presentation costs, and $2,950.04 in lodging costs.

GTP filed an opposition to Riceland’s motion. GTP argued that nearly all the costs sought by Riceland were excessive or not allowed under Louisiana law. The court issued written reasons for its ruling. The court fixed as costs $1,000.00 as an expert witness fee for Dr. Post and $1,050.00 as an expert witness fee for Mr. Shattuck, and denied all other costs. Riceland appealed.

On appeal, the court explained that the trial court has great discretion in awarding costs, including expert witness fees. The trial court’s assessment of costs may be reversed only upon a showing of abuse of discretion.

According to the court, Dr. Post was a highly specialized expert in visual acuity. His testimony on vision and the ability to see the guy wire that caused the accident were undoubtedly helpful to the jury in finding GTP 79% at fault. Considering the factors, the court found that the $1,000.00 expert witness fee awarded to Dr. Post was unreasonable and an abuse of discretion. After deducting the travel expenses from the invoiced amount and reducing the amount to 79%, the court found that a more reasonable fee for Dr. Post would be $7,157.40. Accordingly, the trial court’s award for Dr. Post’s fees was increased from $1,000.00 to $7,157.40.

The court observed that Mr. Shattuck was a veteran agriculture aviator whose testimony was both compelling and explanatory. Considering the factors, the court found that the $1,050.00 expert witness fee awarded to Mr. Shattuck was unreasonable and an abuse of discretion. Accordingly, the trial court’s award of $1,050.00 was increased to $3,306.15 or 79% of the amount Riceland sought.

Riceland also asserted that the trial court erred by failing to award costs for two of its trial exhibits. Riceland requested that the court award $570.85 it spent to enlarge two exhibits for trial, and the court refused to do so as the exhibits were not introduced into evidence when the trial was complete. According to the appellate court, these exhibits were not necessary for Riceland to present its case, and one of the exhibits had to be removed from the courtroom because it contained an incorrect ordinance. Accordingly, the court found no abuse of discretion in the trial court’s decision not to award Riceland the cost for the exhibits.

Hanover Insurance Company as subrogee of GTP Investments, LLC, v. Riceland Aviation, Inc., et al.—Court of Appeals of Louisiana, Third Circuit—December 9, 2020—No. 20-153.

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