United States District Court, N.D. Texas, Dallas Division
March 07, 2006
James Conner Barber, Jason S. Marina, Law Office of James C. Barber, Charles E. Valles, Waters & Kraus, Dallas, TX, for Plaintiff.
William D. Sims, Jr., Vinson & Elkins, John R. Owen, Owen & Fazio, Dallas, TX, Joseph D. Cohen, Porter & Hedges, Houston, TX, for Defendant.
*1 James C. Barber, lead counsel for plaintiff, has filed a declaration in support of his request for $164,225.00 in attorney's fees and expenses reasonably incurred in bringing a motion to compel discovery of Wyeth's adverse event database and the production of prior versions of ADE reports and source documents. Defendant counters that the fees requested by plaintiff are excessive and suggests that a more reasonable award would be something less than $41,000.00. The issues have been fully briefed by the parties and this matter is ripe for determination.
Plaintiff's request for attorney's fees and expenses arises out of an omnibus discovery motion filed on October 24, 2005. As part of that motion, plaintiff accused defendant of withholding information from its S-cubed database and failing to produce all prior versions of and source documents for ADE reports as previously ordered by the court. Following a hearing on January 6, 2006, the court granted plaintiff and her expert supervised access to the S-cubed database and once again ordered defendant to produce prior versions of and source documents for the ADE reports that manifest the symptomatology experienced by LaBrea Williams. See
Order, 1/12/06 at 2-3, A(2) & (3) and
Order, 12/8/03 at 2-3. The court also awarded plaintiff:
attorney's fees and expenses, and the expert witness fees and travel expenses of Keith Altman that Plaintiff reasonably incurred in bringing her Motion regarding Defendant's adverse event database and the production of prior versions of ADE reports and source documents.
Order, 1/12/06 at 3, 4. When the parties were unable to agree on a reasonable fee award, Barber filed a declaration seeking $164,225.00 in attorney's fees and expenses, calculated as follows: (1) 190.00 hours of work performed by Barber, calculated at the rate of $650.00 per hour; (2) 136.5 hours of work performed by Rhonda Bartlett, an associate attorney, calculated at the rate of $150.00 per hour; and (3) $20,250.00 in expert witness fees and expenses paid to Keith Altman.
The court initially observes that, unlike a fee award to a prevailing party at the conclusion of a case, the reasonableness of fees and expenses in the sanctions context is not necessarily governed by the analysis described in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Instead, the court may rely on its own factual determination in deciding the proper fee amount. See Graham v. Dallas Independent School Dist.,
No. 3-04-CV-2461-B, op. at 12 (N.D.Tex. Jan. 10, 2006), citing
Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1238 (5th Cir.1984). After reviewing the written submissions of the parties, including the declarations of their attorneys and witnesses, and based on its own factual observations, the court determines that plaintiff should be awarded $34,420.00 in attorney's fees and $13,550.00 in expenses, for a total of $47,970.00.
The court initially observes that neither James C. Barber nor his associate, Rhonda Bartlett, kept contemporaneous time records. Rather, counsel “reconstructed” their time for the sole purpose of seeking attorney's fees. This casts substantial doubt on the accuracy of the reconstructed records and the entries contained therein. But even if the reconstructed entries are accurate, there is no way to determine how much time was spent on issues related to Wyeth's adverse event database and the production of prior versions of ADE reports and source documents, for which plaintiff is entitled to compensation, as opposed to time spent on the other issues raised by plaintiff in her motion to compel and for sanctions. A review of the three-page reconstruction submitted by plaintiff suggests that Barber and Bartlett have included all
time spent in researching, drafting, editing, and finalizing the motion-not just the issues related to Wyeth's adverse event database and prior versions of ADE reports and source documents. (See
Barber Decl., Exh. 3). Based on its own review of plaintiff's motion to compel and for sanctions and the reconstructed time records submitted by counsel, the court finds that 64.00 hours spent by Barber and 46.00 hours spent by Bartlett, or roughly one-third of the total time spent by these attorneys, was reasonably related to the issues for which plaintiff is entitled to compensation.
*2 The court also rejects Barber's testimony, supported by two lawyer-witnesses, that $650.00 per hour is a reasonable hourly rate for an attorney with his qualifications, skill, and experience. No doubt that Barber is a highly skilled personal injury trial lawyer who has successfully handled many products liability cases on behalf of clients over the more than 40 years he has been licenced to practice law. Still, that does not justify compensation at a rate of $650.00 per hour. None of the cases cited by Barber or his witnesses support such a high hourly rate. To the contrary, the declaration of Kenneth H. Molberg suggests that a reasonable rate in the Dallas area would be $400.00-$465.00 per hour. (Id.,
Exh. 4, Molberg Decl. at 9-12, j-k).
The court therefore determines that Barber should be compensated for 64.00 hours of work at the rate of $430.00 per hour, for a total of $27,520.00. Defendant does not object to Bartlett's hourly rate of $150.00 per hour, and she should be compensated 46.00 hours of work at that rate, for a total of $6,900.00.
With respect to $19,250.00 in expert witness fees and $1,000.00 in travel expenses claimed by Keith Altman, the court determines that plaintiff should recover only those fees and expenses described in Invoice Nos. 1864 and 1865 (see id.,
Exh. 4), except that the 22.00 hours spent by Altman from November 21-25, 2005 should be reduced to 10.00 hours. Plaintiff is therefore entitled to expert witness fees and expenses in the amount of $13,550.00.
For these reasons, plaintiff shall recover $47,970.00 in attorney's fees and expenses reasonably incurred in bringing a motion to compel discovery of Wyeth's adverse event database and the production of prior versions of ADE reports and source documents. Defendant shall pay these fees and expenses to counsel for plaintiff within 30 days from the date of this order.
In a Title VII pregnancy discrimination case tried by Molberg in 1996, this court calculated his fee at the rate of $250.00 per hour. Migis v. Pearle Vision, Inc., 944 F.Supp. 508, 515 (N.D.Tex.1996) (Kaplan, J.), aff'd in part, rev'd in part,
135 F.3d 1041 (5th Cir.1998).
End of Document.