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Expert fees can be considered part of prevailing attorneys’ fees in an action under the federal Individuals with Disabilities Education Act (IDEA), a Southern District of New York judge has ruled. U.S. District Judge Colleen McMahon granted most of the fees — more than $1 million — sought by lawyers who helped force a settlement in a case challenging how New York City, New York state and Westchester County educate autistic children. However, she found the fee request for three experts “exorbitant,” and granted only half the amount sought. And McMahon, disagreeing with other Southern District judges who have allowed fee shifting for research charges, refused to allow a request by plaintiffs’ attorneys to have their Westlaw fees paid. The rulings came in the recently settled cases, BD v. DeBuono, 98 Civ. 0910, in which the parents of several children diagnosed with autism or pervasive developmental disorder alleged schools were violating rights guaranteed by the IDEA. Two of the experts issued reports for the plaintiffs in support of their position that the children received insufficient applied behavior analysis therapy. A third expert reported on the economic impact that insufficient therapy would have on the children. On Oct. 19, McMahon approved a comprehensive settlement, which included an injunction. She then addressed the fee requests of the plaintiffs’ lawyers, including $209,568 for the experts, and costs, which included $40,744 for Westlaw research charges. McMahon said that courts have disagreed about whether expert fees are recoverable under IDEA. The “bare language of the statute” seems to support those judges who have ruled against awarding expert fees, she said, because IDEA states only that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is a prevailing party.” But in examining the legislative history behind IDEA, Judge McMahon said a conference report on negotiations between the Senate and the House of Representatives indicates that the term “attorneys’ fees” can include expert witnesses or any test or evaluation necessary for the preparation of a case. “I am persuaded, given the clear legislative history behind IDEA, that Congress intended to for expert fees to be reimbursable as attorneys’ fees in cases brought to enforce the rights guaranteed by the IDEA, even when those cases are suits for past damages rather than actions for compensatory education or injunctive relief,” she said. And even though the plaintiffs did not seek “compensatory education or injunctive relief,” in the DeBuono cases, she said, “the settlement that was ultimately agreed to resulted in the entry of an injunction that will govern the IDEA rights of children, and responsibilities of the municipal defendants, in future years.” ‘EXCESSIVE’ EXPERT FEES Nonetheless, Judge McMahon found that the $209,568 sought by plaintiffs for their experts was excessive, particularly when compared to the less than $35,000 the defendants spent on their own trio of experts. Instead, she awarded the plaintiffs’ lawyers $104,784 for their experts. Turning to Westlaw fees, McMahon said that “While there is conflicting authority regarding the compensation of computer research charges, this Court holds that Westlaw fees are not attorneys’ fees, but a separate non-reimbursable taxable cost under 20 U.S.C. Section 1920. “An attorney’s time spent performing computerized research is properly compensable,” she said. “However, the cost of the computer service used in the research is no more reimbursable than the cost of West’s Keynote Digests and the volumes of the Federal Reporter and the Federal Supplement that lawyers used to use (and many still use) to find authority and research issues of law,” she said. “Westlaw fees are simply an item of overhead, and as such should be built into the fees charged, rather than unbundled and reimbursed separately.” Some cases in the Southern District, McMahon said, have allowed the shifting of computer research fees, in part because of the belief that attorneys can complete research faster with the use of computer databases. “I am unpersuaded by this reasoning — especially the notion that use of Westlaw saves attorney time,” Judge McMahon said. “Whether one reads a case from a book or a screen, the attorney’s time is the compensable element — not the medium that delivers the message.” Judge McMahon went on to approve 90 percent of the plaintiffs’ attorneys’ fee requests, a total of $1,051,303. And McMahon also ruled that $121,927 must be paid by Westchester County to plaintiffs’ attorneys to compensate them for monies spent on a litigation consulting company. Jay Eisenhofer, Stuart Grant and Denise T. DiPersio of Grant & Eisenhofer in Wilmington, Del., and Mark J. Krum of Philadelphia represented the plaintiffs. Assistant Attorney General Barbara Hathaway represented New York state. Robert DeRight Jr. and James G. Murphy of New York-based Epstein Becker & Green represented Westchester County. Assistant Corporation Counsel Jeffrey Dantowitz represented New York City.

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