02-5910.051 April 14, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRENDA BURKE, )

)

Plaintiff, )

)

 v. ) No. 02 C 5910

) 

THE PRUDENTIAL INSURANCE COMPANY )

OF AMERICA, )

 )

Defendant. )

MEMORANDUM OPINION

The court has considered the Joint Statement of the parties

filed pursuant to Local Rule 54.3, and makes the following rulings:

I.

Defendant objects to a total of $6,785.50 in attorneys’ fees

and costs associated with the Lake County proceedings and the fees

for research and briefing on the offset for Social Security

disability benefits and the proper rate of prejudgment interest.

The court agrees with defendant that this amount should be deducted

from the plaintiff’s fee request. The Lake County complaint

alleged a number of state law claims that were preempted by ERISA,

which plaintiff’s attorneys should have known. (Some of the

research time in this category was spent on the question of ERISA

preemption.) As for the time spent on the Social Security and

prejudgment interest questions, plaintiff was not the prevailing
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party on those issues, and therefore we have “an obligation to

adjust the award downward to account for time spent on unsuccessful

claims.” Divane v. Krull Elec. Co., 319 F.3d 307, 315 (7th Cir.

2003). These issues are quite distinct from the claim on which

plaintiff did prevail, and the reduction is therefore required.

II.

Defendant argues that a total of $2,953.50 should be deducted

for duplicative billing. Basically, defendant argues that time

charges for only one attorney should be allowed for trial. There

was some duplication, as there always is when more than one

attorney works on a case, but the amount was minimal. Each of the

two attorneys involved made individual contributions. It was not

a matter of one attorney simply sitting and watching another do the

work. This objection is overruled.

III.

Defendant asks that plaintiff’s request be reduced by

$16,358.08 because of the inclusion of non-taxable costs associated

with witnesses and depositions. However, plaintiff is not limited

to the costs allowable under 28 U.S.C. § 1920 or Federal Rule of

Civil Procedure 54(d)(1). The ERISA statute itself gives the court

discretion to award a reasonable attorney’s fee “and costs of

action,” 29 U.S.C. § 1132(g)(1). Under such fee-shifting statutes,

awards of attorneys’ fees “normally include those reasonable outof-pocket expenses incurred by the attorney and which are normally
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charged fee-paying clients.” Reichman v. Bonsignore, Brignati &

Mazzotta, P.C., 818 F.2d 278, 283 (2d Cir. 1987)(citation omitted);

Lutheran Med. Center of Omaha v. Contractors, Laborers, Teamsters

and Engineers Health and Welfare Plan, 814 F.Supp. 799, 804 (D.

Neb. 1993)(ERISA case). We think the miscellaneous items objected

to are of the kind normally billed to clients, are reasonable in

amount, and are sufficiently documented. Accordingly, defendant’s

objection is overruled. 

Defendant objects to the expert witness fees incurred by

plaintiff as well as some of the travel expenses incurred by

plaintiff’s counsel in connection with depositions. It is true

that such items are not ordinarily recoverable as taxable costs

under 28 U.S.C. § 1920; but again, we are dealing with a fee- and

cost-shifting statute. Reasonable travel expenses are therefore

appropriate, Smith v. Great American Restaurants, Inc. 969 F.2d

430, 440 (7th Cir. 1992). It would have been impossible to have

prosecuted this case successfully without expert testimony, and we

believe, therefore, that reasonable expert witness fees are also

recoverable. 

Defendant argues that no costs should be recoverable for the

deposition of Martha Scott because her deposition was not taken.

We have no contrary information from plaintiff, and therefore no

costs will be allowed for a Martha Scott deposition. Aside from

that, there is nothing to indicate that any of the deposition costs
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or travel expenses were excessive, and they will be allowed. While

the expert witness fees are substantial, they are no higher than

are routinely charged in present-day litigation. A party must pay

the “market rate” or do without expert testimony, and there is no

reason to believe plaintiff could have obtained the testimony more

inexpensively. The expert witness fees will therefore be allowed.

Conclusion

To insure that the award is accurate in amount, we ask that

counsel prepare an order in accordance with this opinion and submit

it for entry when ready. 

DATE: April 14, 2005

ENTER: _________________________________________

John F. Grady, United States District Judge