Clark v. Bamberger et al
Filing
127
OPINION. Signed by Honorable Judge Myron H. Thompson on 3/28/16. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
JENNIFER CLARK, as
)
personal representative of )
the estate of Jeremy
)
Clark,
)
)
Plaintiff,
)
)
v.
)
)
JOEY BAMBERGER, et al.,
)
)
Defendants.
)
CIVIL ACTION NO.
1:12cv1122-MHT
(WO)
OPINION
Plaintiff
Jennifer
Clark,
as
personal
representative of the estate of her deceased husband
Jeremy Clark, filed this wrongful-death suit against
defendants
Joey
Rolls-Royce
Bamberger,
Communications
Army
Corporation
Fleet
Corporation.
and
Support,
its
LLC,
Jurisdiction
employee
and
is
L-3
proper
under 28 U.S.C. § 1332 (diversity).
This case is before the court on the parties’ joint
motion to approve their settlement and the distribution
of settlement proceeds.
The parties seek the court’s
approval because the decedent’s two minor children will
be
recipients
reasons
of
discussed
part
of
the
below,
settlement.
For
the
settlement
will
be
the
approved.
This case arises out of a tragic accident in which
Jeremy
Clark,
a
civilian
helicopter-training
pilot
employed by the Army, was killed when the helicopter he
was piloting crashed during a training exercise at Fort
Rucker,
Alabama.
Defendant
Rolls-Royce,
the
manufacturer of the helicopter’s engine, had contracted
with the Army to assist in troubleshooting technical
problems
with
the
Clark’s helicopter.
type
of
engine
used
in
decedent
There had been a technical problem
with the engine days before the crash, and defendant
Bamberger,
a
Rolls-Royce
employee,
troubleshooting the problem.
was
involved
in
Plaintiff Clark contends
that Bamberger’s failure to complete certain steps in
troubleshooting the problem led to the crash.
She also
asserts that employees of defendants Army Fleet Support
and L-3 Communications were involved in the inspection,
2
service, maintenance, and repair of the aircraft, and
that
their
defendants
numerous
errors
denied
also
led
liability
defenses,
and
to
for
filed
the
the
crash.
crash,
motions
The
asserted
for
summary
judgment and to exclude expert testimony offered by the
plaintiff.
The
lawsuit.
against
parties
have
now
settled
all
claims
in
the
Plaintiff has agreed to settle her claims
Rolls-Royce
and
Bamberger
in
exchange
for
a
payment of $ 8 million in full and final satisfaction
of any and all claims that were or could have been
asserted
by
plaintiff
arising
out
of
the
accident.
Plaintiff has also agreed to settle her claims against
Army Fleet Support and L-3 Communications in exchange
for
a
payment
of
$ 500,000
in
full
and
final
satisfaction of any and all claims that were or could
have been asserted by her arising out of the accident.
Rolls Royce has deposited its settlement funds with the
clerk of court.
3
Under
Alabama’s
decedent’s
two
wrongful-death
minor
children
statute,
will
significant part of this settlement.
the
receive
a
Accordingly, and
based on a motion by plaintiff, the court appointed a
guardian
ad
for
hearing
evidentiary
litem
on
the
the
children
motion
and
to
held
approve
an
the
settlement.
At the hearing, the court heard testimony from the
guardian ad litem and plaintiff, who is the children’s
mother.
litem
fair
Both the children’s mother and the guardian ad
opined
and
protected
that
that
the
the
during
settlement
children’s
their
was
money
minority
and
reasonable
would
be
beyond.
and
well
The
parties explained the proposed deposit of each child’s
portion of the settlement in a trust set up for that
child and administered by an experienced trustee.
The
funds will be invested by the trustee and disbursed for
each child’s necessities if their mother cannot meet
her
duty
of
support,
or,
if
she
can,
for
necessities beyond the mother’s duty of support.
4
any
Once
a child is over the age of 18, the trustee will begin
to
disburse
expenses,
the
funds
to
purchase
needed
the
of
and
in
child
a
car,
and
educational
other
discretion
of
major
expenses
as
trustee.
Each child would begin to receive income from
the trust at the age of 21.
the
for
the
At the age of 25, when the
child has developed in maturity, the child will receive
control of a significant portion of the principal; the
child will receive another significant portion at age
30, and the remainder at age 35, at which point the
trust will terminate.
The parties also explained that 40 % of the total
settlement would go to pay plaintiff’s counsel’s fees,
and that expenses would be also reimbursed from the
settlement funds.
from
the
remainder
Fees and expenses will be deducted
settlement
between
funds
plaintiff
before
and
the
division
of
children.
the
The
parties also represented that plaintiff will satisfy
and resolve all liens and subrogation interests arising
out of the accident using the settlement funds paid to
5
her, not the children’s settlement funds.
Clark agreed
that the fees for the guardian ad litem would come out
of her funds, not the children’s.
Having reviewed the pleadings, motions, briefs, and
evidence in this case and heard a detailed explanation
of the settlement, the court finds that all the terms
and provisions of the proposed settlement are in the
best
interests
of
the
minor
children
and
are
fair,
just, and reasonable under the circumstances involved
in this case.
It reaches this conclusion for several
reasons.
First, the case presented difficult legal issues
regarding
that
These
causation,
could
have
included
privilege,
been
decided
difficult
and
expert
against
questions
testimony
either
regarding
side.
whether
the plaintiff could prove causation in the absence of a
definitive
record
of
what
caused
the
helicopter
to
crash, and the novel question whether a governmental
privilege
relying
would
upon
prevent
information
plaintiff’s
from
6
a
experts
redacted
from
government
accident
report
plaintiff.
question
that
The
would,
the
government
court’s
in
released
resolution
turn,
have
of
to
the
impacted
the
latter
whether
plaintiff’s experts could testify to causation at all.
The
settlement
parties
and
eliminated
the
that
potential
for
uncertainty
many
all
years
more
for
of
litigation and attendant expense.
Second, the amount of the settlement was within the
range of verdicts received in wrongful-death cases in
Alabama.
Under Alabama's Wrongful Death Act, 1975 Ala.
Code § 6-5-410, only punitive damages, not compensatory
damages, are recoverable.
and
Pool
1992).
Inst.,
Inc.,
See, e.g., King v. Nat'l Spa
607
So.
2d
1241,
1246
(Ala.
Plaintiff points out a number wrongful-death
verdicts in Alabama that were lower--or were reduced by
the Alabama Supreme Court to an amount lower--than the
total
settlement
here.
Ass'n
v.
981
(reducing
Tyler,
$ 5.5
So.
million
See,
2d
e.g.,
1077,
Mobile
1106
wrongful-death
Infirmary
(Ala.
award
2007)
to
$ 3
million); Boles v. Parris, 952 So. 2d 364 (Ala. 2006)
7
(affirming $ 1.275 million wrongful-death award); Mack
Trucks, Inc. v. Witherspoon, 867 So. 2d 307, 309 (Ala.
2003) (reducing $ 25 million wrongful-death award to
$6 million);
1204,
Lance,
1221
Inc.
(Ala.
v.
1999)
Ramanauskas,
(reducing
731
$ 13
So.
2d
million
wrongful-death award to $ 4 million); Tillis Trucking
Co., Inc. v. Moses, 748 So. 2d 874, 887-891 (Ala. 1999)
(reducing
$ 7
million
wrongful-death
award
to
$ 1.5
million).
The value of these cases as comparators is somewhat
limited by the differences in facts between those cases
in this one.
involved
wealth
For example, most of the cited cases
defendants
than
that
(presumably)
Rolls-Royce,
and
the
had
wealth
far
of
less
the
defendant is a relevant--but not determinative--factor
that juries may consider in determining the size of a
punitive-damages award, and that courts may consider in
reviewing the legality of such awards.
Co.
v.
Hornsby,
539
So.
2d
218,
223
See Green Oil
(Ala.
1989)
(listing the “financial position of the defendant” as a
8
relevant factor in determining the appropriateness of a
jury’s punitive-damage award); see also BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 591 (1996) (“Since a fixed
dollar award will punish a poor person more than a
wealthy one, one can understand the relevance of this
factor
to
the
Nevertheless,
value
as
awards
State's
the
cited
comparators;
were
interest
reduced
cases
are
further,
reflect
in
the
retribution.”).
still
the
of
cases
close
in
punitive-damages
awards
against
corporations may be reduced on appeal.
(reducing
$ 2
million
punitive-damages
BMW because it was excessive);
Ins.
Co.
(finding
v.
Campbell,
$ 145-million
538
U.S.
which
scrutiny
courts apply to large punitive-damages awards.
even
general
that
Indeed,
very
large
See, e.g., id.
award
against
State Farm Mut. Auto.
408,
punitive-damages
418-429
award
(2003)
against
State Farm excessive under Due Process Clause).
In
light
of
these
precedents
and
the
difficult
legal hurdles plaintiff faced in proving her case, the
total settlement amount here is appropriate.
9
Moreover,
the
significantly
Rolls-Royce
higher
defendants
settlement
makes
sense,
as
with
the
the
evidence
(submitted with motions and briefs) was significantly
stronger
against
them
than
against
the
other
defendants.
The court also finds the trusts for each minor’s
portion of the settlement funds, as described on the
record, to be in the best interest of the minor.
The
graduated release of trust funds seems eminently wise.
Finally,
the
court
must
scrutinize
the
reasonableness of the attorneys’ fee contract, as it
will affect the children’s net recovery.
court
abuses
without
its
discretion
carefully
factors ... elaborated
in
when
it
“A district
allows
considering
Johnson
v.
Ga.
a
fee
the
Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).”
Hoffert v. Gen. Motors Corp., 656 F.2d 161, 166 (5th
Cir. 1981).*
These 12 Johnson factors are: (1) the
*
See Bonner v. City of Pritchard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (holding that
decisions of the former Fifth Circuit rendered prior to
10
time and labor required; (2) the novelty and difficulty
of the questions; (3) the skill required to perform the
legal services properly; (4) the preclusion of other
employment by the attorney due to acceptance of the
case;
(5)
whether
the
the
customary
fee
is
fee
fixed
in
or
the
community;
contingent;
(7)
(6)
time
limitations imposed by the client or circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case; (11) the nature
and length of the professional relationship with the
client; and (12) awards in similar cases.
Johnson, 488
F.2d at 717–19.
In
light
of
the
Johnson
factors,
the
contingency fee in this case is reasonable.
this
case
clearly
has
required
labor from plaintiff’s counsel.
substantial
40 %
First,
time
and
Plaintiff’s attorneys,
over a period of several years, engaged in apparently
extensive discovery (based on the evidence submitted
close of business on September 30, 1981, are binding in
the Eleventh Circuit).
11
with the briefing), filed motions to compel, retained
and
produced
reports
from
three
experts,
and
filed
necessarily lengthy, well drafted briefs in response to
multiple substantive and complex defense motions.
In
sum, this case has taken significant time that likely
could have been devoted to other cases.
Furthermore, as discussed above, this case presents
numerous
difficult
required
a
very
effectively;
legal
high
issues
level
plaintiff’s
of
and
has
skill
attorneys,
therefore
to
who
litigate
are
highly
skilled in the court’s estimation, have done so.
They
obtained a good result for their client.
Alabama’s rules of professional conduct do not set
an upper limit for contingency fees, instead requiring
that they not be “clearly excessive.”
Con. 1.5(a).
Ala. R. Prof.
As stated at the hearing, plaintiff’s
counsel has expended hundreds of thousands of dollars
on the pretrial litigation of this case.
“When an
attorney accepts a client on a contingent-fee basis,
the
attorney
assumes
the
12
risk
of
nonpayment
for
expenses and is acting at his own peril.
‘If someone
is willing to take the great risk of giving up the sure
quantity
for
the
uncertain,
and
wins,
then
the
uncertain prize should be worth more than the certain
one.’”
Madison Cnty. Dep't of Human Res. v. T.S., 53
So. 3d 38, 56 (Ala. 2009).
Here, plaintiff’s counsel
faced a considerable risk of not recovering at all due
to the highly circumstantial nature of the evidence in
the case.
Given this risk, the high cost of litigating
the case, and the skill with which it was litigated,
40 % is not excessive.
An appropriate judgment will be entered.
DONE, this the 28th day of March, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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