Afcan et al v. United States of America
ORDER granting 161 Motion for Sanctions; US to pay sum of $25,037.25 in atty's fees and $8,189.87 in costs for a total award of $33,227.12; crt will not entertain a mot for reconsideration of this ord. Signed by Judge John W. Sedwick on 5/13/11. (PRR, COURT STAFF)
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
JENNIFER AFCAN , individually
and on behalf of her minor son, J.A.,
UNITED STATES OF AMERICA,
ORDER AND OPINION
[Re: Motion at Docket 161]
I. MOTION PRESENTED
At docket 161, plaintiff Jennifer Afcan (“Afcan”) moves pursuant to Federal Rule
37 for an award of expenses incurred in proving the applicable standard of care.
Defendant the United States of America (“United States” or “the government”) opposes
the motion at docket 169. Afcan’s reply is at docket 175. Oral argument was not
requested and would not assist the court.
On October 10, 2009, Afcan formally requested that the United States “[a]dmit
that the protocol for treating a patient who presents with an abscess and the signs and
symptoms of the bacteria infection methicillin-resistant staphylococcus aureus is to
incise and drain the infected tissue and administer an antibiotic to which methicillinresistant staphylococcus aureus is not resistant.”1 The United States responded as
Doc. 161 at 1–2; doc. 169 at 3.
follows: “This is an expert question and no answer is required until expert reports are
due.”2 The United States did not supplement its response once expert reports had been
filed. Afcan argues that sanctions are appropriate because she was forced to prove the
standard of care at trial.3
A. Rule 37(c)(2) Sanctions are Appropriate
Federal Rule 37(c)(2) provides that “[i]f a party fails to admit what is requested
under Rule 36 and if the requesting party later proves . . . the matter true, the requesting
party may move that the party who failed to admit pay the reasonable expenses,
including attorney’s fees, incurred in making that proof.”4 The Rule instructs that “[t]he
court must so order unless: (A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance; (C) the party failing to admit
had a reasonable ground to believe that it might prevail on the matter; or (D) there was
other good reason for the failure to admit.”5
The United States argues first that Afcan “should have addressed what she
believed to be the inadequacies of the government’s answers to admission requests”
before trial.6 Rule 37(c), however, “is intended to provide posttrial relief.”7
Consequently, the government’s first argument fails.
The United States argues next that it “did not deny the request” and therefore,
Rule 37 sanctions are not available.8 Rule 37(c)(2) includes “within its scope all failures
Doc. 161 at 2; doc. 169 at 3.
See AS 09.55.540 (requiring proof of “the degree of care ordinarily exercised under the
circumstances” in a medical malpractice action).
Fed. R. Civ. P. 37(c)(2).
Doc. 169 at 2.
Fed. R. Civ. P. 37 advisory committee’s note (emphasis added); see also doc. 151.
Doc. 169 at 4.
to admit,” not just denials.9 Because the United States did not admit the substance of
the relevant request, it is immaterial that it did not deny it.
The United States argues that the requested admission would not have
established the applicable standard of care.10 It is conceivable that, even if the
government made the requested admission, Afcan would have had to present some
testimony equating protocol to the standard of care. Realistically, however, the
requested admission would have resolved the issue–it is unlikely that the government
would have taken the position that a protocol which it had admitted was the correct
protocol was inconsistent with the standard of care.
The United States argues that there was good reason for its failure to admit
insofar as the request “was made months before expert reports were due” and once
reports were submitted, it “simply forgot to supplement its answer.”11 The court agrees
that if forgetfulness sufficed as good reason, Rule 37(c)(2) would be rendered impotent.
Finally, the government argues it had reasonable ground to believe it might
prevail on the issue. Afcan maintains the government could not have reasonably
believed it would prevail on the issue given YKHC physicians’ peer review of J.A.’s
treatment, which concluded incision and drainage should have been done earlier. The
government argues that it was “not bound by YKHC’s evaluation which was done before
extensive discovery was made.”12 The conclusions of the peer review significantly
detract from the reasonableness of any ground the government had to believe it would
prove that the standard of care was other than that stated in the request for admission.
The government also argues that the YKHC guideline affords significant discretion.
However, because the guideline indicates that under most circumstances incision and
drainage is appropriate, the guideline also detracts from the reasonableness of any
ground to believe that a different standard of care was applicable.
Fed. R. Civ. P. 37 advisory committee’s note (emphasis added).
Doc. 169 at 4.
Doc. 169 at 5.
Doc. 169 at 6.
The requirements of Rule 37(c)(2) are satisfied and no exception applies.
Afcan is therefore entitled to “reasonable expenses, including attorney’s fees,
incurred in” proving the standard of care.13 Afcan originally sought $47,075 in attorney’s
fees and $24,141.99 in costs.14 In her reply memo, she reduced the amounts to
$35,236 in attorneys’ fees and $14,806.33 in costs.15 The total she seeks is
The government argues that Afcan had to present certain testimony and exhibits
in order to prove recklessness, irrespective of its failure to admit the standard of care.16
Afcan responds that proof of recklessness was subsumed in proof of the standard of
care.17 The task really is to separate the amount of work done to prove recklessness,
which would also have been done to prove the standard of care from the amount of
work done to prove recklessness only. The former is compensable,18 but the latter
would not be compensable.
Only some of the work needed to prove recklessness would have been done to
prove the standard of care because proof of a standard of care provides only a baseline
for evaluating potential recklessness. However, the court agrees with Afcan that much
of the testimony presented and the costs incurred are necessarily subsumed in proof of
the standard of care.
The government argues that “[i]t is easier to refer to work that conceivably might
have been directly related to the” relevant request for admission.19 Use of the
Fed. R. Civ. P. 37(c)(2).
See doc. 161-1 at pp. 9 and 12
See doc. 175-1 at pp. 9 and 12.
Doc. 169 at 9.
Doc. 175 at 10. See Marchand v. Mercy Medical Ctr., 22 F.3d 933, 939 (9th Cir. 1994).
Marchand, 22 F.3d at 939.
Doc. 169 at 10.
government’s standard would depart from the language of Rule 37 insofar as it would
ignore subsumed costs and fees that were incurred in proving the standard of care.
Plaintiff’s second amended complaint asserted three claims: negligence,
recklessness, and loss of society. A showing of recklessness would have entitled
plaintiff to enhanced damages. Loss of society is a form of injury. Negligence,
therefore, was Afcan’s primary claim. The standard of care is one of four elements that
a plaintiff must show under AS 09.55.540.
The invoice provided by plaintiff deducted all costs and fees which Afcan
concluded were unrelated to the standard of care and reduced numerous timekeeper
entries by 50 percent. The court has reviewed the plaintiff’s timekeeper entries and
agrees that elimination of all entries prior to February 1, 2010, is appropriate and that
the reduction to those items plaintiff reduced by 50 percent is appropriate. However,
the court finds that additional deductions are appropriate. The first is a deduction for all
timekeeper entries from 2/12/10 thru 5/10/10. These were necessary, but are unrelated
to proving the standard of care. The deduction for this first group of entries totals
$3,624.00. The second group of items to be deducted are the timekeeper entries for
6/23/10, the first of the entries for 6/24/10, the second and third entries for 6/25/10, the
entry for 7/6/10, and the entry for 9/8/10. The total for this group is $2,961.00. Finally,
the court deems it appropriate to apply the same 50 percent reduction used by Afcan for
some of the timekeeper entries to all of the entries not already excised by Afcan from
11/05/10 through the first entry on 2/16/11 and the second to last entry for 2/17/11. This
reduction totals $3,613.75. The total of all deductions is $10,198.75. The court will
award attorney’s fees of $25,037.25 ($35,236.00 less $10,198.75).
With respect to costs, Afcan eliminated many entries and reduced others by half,
including Dr. McNamara’s expert fee billed on 2/1/10 and 8/12/10. The court concludes
that consistency requires a reduction of 50 percent for the McNamara-related items
billed on 5/26/10, 7/07/10, 7/13/10, and 9/14/10. These reductions add up to $941.71.
Next, the court also finds a 50 percent reduction is appropriate for the following: the two
entries on 1/12/11, the entry for 2/16/11, both entries for 2/18/11, the entry for 3/8/11,
the first and third entries 3/29/11, and the entry for 4/1/11. This reduction sums to
$1,995.11. Finally, in the court’s view the following expenses should be deducted: all
costs billed on 3/29/11, except for the first and third listed. These are costs that had to
be incurred regardless of the issue at hand. This deduction totals $3,679.64. The total
reduction in costs is $6,616.46. The court will award costs of $8,189.87 ($14,806.33
For the reasons above, plaintiff’s motion at docket 161 is GRANTED as follows:
The United States shall pay the sum of $25,037.25 in attorney’s fees and $8,189.87 in
costs for a total award of $33,227.12.
The parties are advised that the court will NOT entertain a motion for
reconsideration of this order.
DATED at Anchorage, Alaska, this 13th day of May 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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