7 CIR 128 (1983). 215 Neb. 89, 337 N.W.2d 716 (1983). Affirmed in part and in part reversed. The below decision was rendered after the supreme court's decision noted above.


Petitioner |
v. | ORDER
Defendant. |

Before: Judges Gradwohl, Orr and Mullin.


This matter comes on for a determination of the City of North Platte's Application For Fees and Expenses, filed May 24, 1982, the day before the City filed its Notice of Appeal to the Supreme Court from the Commission's decision entered April 27, 1982. The Application requests that the Commission order the Firefighters to pay the City the sum of $6,220.44, based upon the Firefighters having called the City's expert witness to testify on behalf of the Firefighters at the trial on the merits. This sum consists of $1,200.00, the proportionate share applicable to the Fire Department of the costs to the City in employing its expert, James L. Jensen of the Carl S. Becker Company, Denver, Colorado, to develop a general pay and classification plan for the City; and $5,020.44 claimed to be directly attributable to this litigation, itemized as follows:

"Included in Original Proposal/Contract:

Cost of preparation for and testifying, IAFF

vs. City of North Platte - Fee $ 800.00

Additional costs - IAFF vs. North Platte

Time acquiring first-hand re comparability

Fee 1800.00

Expenses - Food, travel, & lodging 572.38

Revising data and exhibits (add current Scottsbluff &

Hastings data, (2/27) 450.00

Fee - preparation for and testifying (3/82) 650.00

Expenses - food, travel, and lodging 300.77

Long Distance Telephone for NCIR proceedings

Making appointments for Visits, schooling,

acquiring & clarification of data (1/29) 121.01

LD telephone - Jan. March (82) 36.28

Preparation for and giving deposition for Counsel

for IAFF $275.00

Transportation and Parking 15.00


Total cost, special, and additional for IAFF

vs. City of North Platte Case $5020.44"

The Plaintiff Firefighters has agreed to pay Jensen the $290.00 fee and expenses claimed by Jensen for giving the deposition requested by Firefighters on March 1, 1982. Neither Firefighters nor the City had paid this amount at the time of the present hearing. The Firefighters contest the balance of the City's claim in its Application.

Jensen was hired by the City of North Platte on August 4, 1981, the same date the City took over personnel actions involved in this matter, to prepare a general revision of the City's pay and classification plan. The $1,200.00 item for which the City seeks reimbursement in this proceeding is the proportion of the total contract fee applicable to "29 Fire Union Positions".

The Firefighters' Petition was filed on August 24, 1981. Temporary proceedings were held and the matter came on for trial on October 23, 1981. The trial was recessed and reopened on March 10, 1982. The Commission's Opinion and Order was issued April 27, 1982. The Commission entered an Order Nunc Pro Tunc on May 18, 1982. On appeal, the Supreme Court affirmed the Commission's April 27th Opinion and Order in its entirety and set aside the Order Nunc Pro Tunc for having been improperly rendered. International Association of Firefighters Local 831 v. City of North Platte, 215 Neb. 89, 337 N.W.2d 716 (August 5, 1983).

With respect to the Commission's reopening the hearing after its prior recess, the Supreme Court Opinion states:

"The City contends that the reopening of the hearing allowed the Union to correct the deficiencies in its case and that such action was inherently prejudicial. While we do not find it necessary to decide whether, in fact, the Union's proof was deficient or whether a three-city array was suitable because of our finding that the hearing was properly reopened, we note that the City was at all times prior to and at the time of trial aware of the fact that the Union intended to utilize a five-city array that had been used in prior CIR cases. The only reason the Union was not able to do so was a problem with Scottsbluff and Hastings not reaching a collective bargaining agreement before trial. The City refused to reveal the content of any of its arrays to the Union during contract negotiations. During trial the City rested shortly after the Union and did not introduce any of its arrays into evidence. The CIR reopened the hearing when Hastings and Scottsbluff had reached bargaining agreements. The City was not helpful in providing any information, and therefore the CIR did not abuse its discretion when it determined that under the circumstances reopening the case demonstrated itself to be indispensable to the merits and justice of the cause. See Lewelling v. McElroy, 148 Neb. 309, 27 N.W.2d 268 (1947)."

215 Neb. at 95; 337 N.W.2d at 720-21.

On the issue of the Firefighters' calling the City's expert, Jensen, to testify at the reopened trial, the Supreme Court Opinion states:

"The city also complains that the CIR erred in allowing the Union to call the City's expert witness to testify. We do not agree. After the CIR entered its order of February 5, 1982, which reopened the hearing, the Union took the deposition of James Jensen, the City's expert witness in Denver, Colorado. Testimony from that deposition indicated that Mr. Jensen possessed relevant information regarding prevalent wages and fringe benefit rates. Accordingly, the Union announced at the pretrial conference held on March 2, 1982, that it wished to call the City's expert witness as a witness in its case in chief. After objection by the City the CIR entered an order allowing the Union to call the City's expert as its own witness. Neb. Rev. Stat. §27-402 (Reissue 1979) states that 'all relevant evidence is admissible' except as excluded by federal or this state's statutes or Constitution. Similarly, Neb. Rev. Stat. §27-501 (Reissue 1979) states that no person has the privilege to '(1) Refuse to be a witness; or (2) Refuse to disclose any matter; or (3) Refuse to produce any object or writing; or (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

"This court is unaware of any Nebraska cases involving the compelling of any expert witness to testify, nor has either party cited us to any such case. We therefore look to other jurisdictions and note that there is a conflict of authority as to when and under what circumstances an expert witness retained by one party may be compelled or will be allowed to testify to a matter of opinion upon request of the opposing party. See the annotation on the topic of compelling experts to testify in 77 A.L.R.2d 1182 (1961).

"In a case very similar to the facts in this case, the Supreme Court of South Dakota in State Highway Commission v. Earl , 82 S.D. 139, 143 N.W.2d 88 (1966), reversed the trial court ruling which had precluded the state from eliciting the opinion testimony of the landowners' appraiser. In so holding, the South Dakota court stated at 142, 143 N.W.2d at 89: 'It is generally held to be the duty of every citizen to respond to a subpoena. No distinction, in this respect, exists between an ordinary and an expert witness. Nor can the expert demand compensation beyond ordinary witness fees as a condition precedent to his attendance. 8 Wigmore, Evidence, §2203, p. 140. Also, ordinary and expert witnesses may be compelled to testify, unless privileged, to any relevant factual matter within their knowledge but it is beyond the duty of a witness to make preliminary preparations, perform professional services, make scientific tests, or listen to testimony in order to qualify or testify as an expert.'

"The South Dakota court conducted an overview of all the conflicting cases on the subject and, in concluding that no privilege was available to prevent the testimony, stated: 'The purpose behind our attorney-client privilege is to encourage a client to freely communicate with his attorney without fear of disclosure. Obviously its protective mantle does not extend to an appraiser of real property. He is not an attorney and the appraisal process of inspecting property, examining public records, comparing sales, and applying knowledge, training and experience in forming an opinion of value does not involve a confidential 'communication made by the client'. The mere fact the expert may have communicated his opinion of value to either the attorney or client does not make it a privileged communication.

. . .

" 'In the present action the expert appraisal witness employed by defendant was willing to testify for the State which offered to pay his expert witness fees and expenses. The fact he was previously employed by defendant to appraise the subject property did not create a contractual or proprietary right in either defendant or the expert to suppress or withhold from evidence this expert's formed opinion. He should have been allowed to testify under the circumstances. To deny it constituted reversible error.' Id. at 147-48, 143 N.W.2d at 92-93.

"In the instant case Mr. Jensen was not subpoenaed to testify at trial but appeared voluntarily. However, even if he had been subpoenaed, he was not called upon to make any additional investigation and was merely asked to express opinions he had already formed prior to the trial.

"The trial performs a truth-seeking function in settling controversies between the parties. It runs contrary to that function to suggest that unfavorable evidence in the form of an expert's opinion may be kept from either party in the interest of justice and to prevent prejudice."

215 Neb. at 95-98; 337 N.W.2d at 721-22.

It is well settled in Nebraska that an expert witness is entitled to only those fees contractually agreed to or mandated by statutes. In Lockwood v. Lockwood , 205 Neb. 818, 821, 290 N.W.2d 636,639 (1980), the Court set out this hornbook rule as follows:

"It has long been the rule that a witness who testifies as an expert on a subject requiring special knowledge and skill is, in the absence of a contract for those services, entitled only to the statutory witness fee. See, Anderson v. State, 184 Neb. 467, 168 N.W.2d 522 (1969); Hefti v. Hefti, 166 Neb.181, 88 N.W.2d 231 (1958); Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952); §33-139, R.R.S. 1943."

In fact, the Supreme Court's Opinion in this case, quoting from the Earl decision, above, states:

"Nor can the expert demand compensation beyond ordinary witness fees as a condition precedent to his attendance. 8 Wigmore, Evidence, §2203, p. 140."

215 Neb. at 97, 337 N.W.2d at 721.

It should also be noted that the Lockwood and Earl cases did involve contractual relationships and statutory provisions not present in this matter. Lockwood did assess certain fees as costs in a divorce proceeding in accordance with the Nebraska statute on ordering costs in marriage dissolutions or legal separations. And in a portion of the Earl decision, shown as deleted in the Supreme Court's Opinion in this case (215 Neb. at 97, 337 N.W. at 716), the South Dakota Supreme Court, reversing the lower court's ruling suppressing the testimony, indicated that compensation would be allowable pursuant to a specific South Dakota statute (82 S.D. at 148, 143 N.W.2d at 92-93) if the expert witness is called to testify by the adverse party.

The City cites no Nebraska statute authorizing or compelling the adverse party to compensate its expert witness when called to testify at trial by the adverse party. The Firefighters agree that there is a contractual obligation to pay the deposition costs of $290.00, although that amount has not yet been paid pending the determination on the City's Application in this proceeding. There is no further legal obligation of the Firefighters to contribute additionally to the City's or Mr. Jensen's fee or expenses in this matter.

It is, therefore, Ordered that the Defendant's Application For Fees and Expenses filed May 24, 1982, be denied.

All Judges assigned to the panel in this matter join the entry of this Order.

Entered November 1, 1983.