Once of the most expensive components of litigation is expert costs. In Nevada, pursuant to NRS 18.020, a prevailing party may be able to recover costs “in an action for the recovery of money or damages, where the plaintiff seeks to recover more than $2,500.” While “costs” include expert fees, a prevailing party is limited to “reasonable fees of not more than five expert witnesses” limited to $1,500 per expert witness, unless a court determines that “the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”
In the recent case of Frazier v Drake, the Nevada Court of Appeals addressed precisely what circumstances would warrant more than the statutorily presumed maximum. The case stemmed from a car accident during which Anika Frazier and Randy Keys were rear-ended by Patrick Drake while in the course and scope of his employment. A jury returned a verdict in favor of Patrick Drake and his employer, MS Concrete Company. Drake and MS Concrete then moved for attorneys’ fees and costs, including recovery of $107,635.76 in costs for five experts. The district court found that Drake had retained the top experts in the country, but the expert costs sought were excessive and unreasonable. The district court reduced four expert witnesses’ costs to $10,000 each and awarded the fifth expert the total expert costs of $7,400, for a total expert costs award of $47,400.
Frazier and Keys appealed, arguing that the award of expert costs was excessive. In analyzing the circumstances that would warrant expert costs in excess of the statutory maximum, the Court of Appeals identified 12 non-exhaustive factors to be considered by trial courts: (1) the importance of the expert’s testimony to the party’s case; (2) the degree to which the expert’s opinion aided the trier of fact in deciding the case; (3) whether the expert’s reports or testimony were repetitive of other expert witnesses; (4) the extent and nature of the work performed by the expert; (5) whether the expert had to conduct independent investigations or testing; (6) the amount of time the expert spent in court, preparing a report, and preparing for trial; (7) the expert’s area of expertise; (8) the expert’s education and training; (9) the fee actually charged to the party who retained the expert; (10) the fees traditionally charged by the expert on related matters; (11) comparable experts’ fees charged in similar cases; and (12) if the expert is retained from outside the area where trial is held, the fees and costs that would have been incurred to hire a comparable local expert.
The Court recognized that every factor may not apply in each case and that each case must be examined independently. The Court also cautioned that more than a memorandum of costs would be necessary for an attorney to substantiate expert costs above $1,500, and that an expert cost award “must be supported by an express, careful, and preferably written explanation of the court’s analysis . . . .” Ultimately, the Court remanded the case to the trial court to consider the new factors and enter an award for expert costs accordingly.
Parties in litigation should carefully consider these new factors to evaluate the extent to which they could recover expert costs beyond the statutory $1,500 limit or, conversely, the extent to which substantial opposing expert costs could be awarded in the event of an adverse verdict.