In Karsjens v. Gandhi, No. 24-2876 (8th Cir. Jan. 7, 2026), the Eighth Circuit holds that the district court abused its discretion by entirely excusing a group of indigent class representatives from contributing to the witness fees for four court-appointed experts.
A prevailing party in federal civil litigation is entitled to tax certain costs to the losing side under Fed. R. Civ. P. 54(d), which incorporates 28 U.S.C. § 1920. One category of costs that may be taxed is “[c]ompensation of court appointed experts.”
In this case, “[t]he Minnesota Department of Human Services operates the Minnesota Sex Offender Program, which treats patients who have been civilly committed under the Minnesota Civil Commitment and Treatment Act. Minn. Stat. § 253D. In 2011, a group of patients in the program brought a class action against state officials on behalf of all patients who were currently civilly committed under the Act.”
The district court appointed counsel to plaintiffs under the aegis of the Minnesota Federal Bar Association’s Pro Se Project.
During the course of the case, the plaintiffs – granted leave by the court to proceed in forma pauperis – “moved the court to appoint experts to assist the patients under Federal Rule of Evidence 706. Rule 706, entitled ‘Court-Appointed Expert Witnesses,’ provides that ‘the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations.’ Fed. R. Evid. 706(a). The court . . . ‘acknowledge[d] the need for experts in this case in order to fully and properly litigate the claims at issue.’ The court required the parties to nominate experts, and then in December 2013 appointed four experts who were nominated jointly by the parties.”
“Later that month, the parties met and conferred on the allocation of payment to the experts. In a letter to the judge, the parties jointly recommended ‘an allocation of 50/50 between plaintiffs and defendants.’ Without explanation, however, the court instead ordered that ‘[w]ithout prejudice to subsequent adjustment, such costs shall be initially allocated to Defendants.’”
In the end, the defendants prevailed on all claims.
The expert witnesses generated fees of $732,923.92. Defendants included this item in their bill of costs against plaintiffs. The district court, though, declined to tax any expert witness fees against plaintiffs because they were “indigent, they will likely not be able to pay these costs in the future, they have brought this action in good faith, the case raised issues of great public importance, the case has been vigorously litigated, the issues were difficult and close, and imposing fees could have a potential chilling effect on future litigants.”
The Eighth Circuit vacates and remands for entry of half the expert-witness fees against the named plaintiffs. While not denying that the plaintiffs were adjudicated by the lower court as indigent, the panel nevertheless notes the (now improvident) concession of their court-appointed counsel that the expert witness fees could be allocated “50/50.”
Notes the panel: “Having made this [50/50] recommendation to the district court, the plaintiffs presumably had the ability, one way or another, to pay their suggested share of the costs. The plaintiffs bore the burden of overcoming the presumption that costs should be awarded to the prevailing party, and they produced no evidence that the situation had changed since the joint recommendation in 2013. The district court found no reason to believe that the patients’ financial situation had changed since 2011, but did not address their willingness to fund half of the expert costs as of 2013.”
The panel gives only glancing attention to the remaining factors considered by the district court. In particular, it notes that plaintiffs’ counsel had means to manage the risk:
“Even if an award of costs might deter plaintiffs from seeking court-appointed experts in a future action, that does not mean that the state officials should bear the costs. The plaintiffs did not present evidence about an agreement or lack of agreement with counsel about responsibility for costs. If there is no such agreement, then perhaps future plaintiffs will insist that their lawyers agree to bear the risk of paying costs in an unsuccessful action. But lawyers also have an opportunity to benefit from an award of fees if they are successful, 42 U.S.C. § 1988, and there are mechanisms by which attorneys for plaintiffs in civil rights cases manage the risk of failure.”
In conclusion, the panel “remand[s] the case to the district court with directions to award costs in favor of the defendants in the amount of $366,461.96, to be assessed against the named plaintiffs jointly and severally. If it turns out that the judgment is not collectible, then so be it, but the prevailing parties are entitled to the judgment under the governing rule on this record.”
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