Fraser et al v. Wyeth Inc et al

Filing 333

ORDER: The Court awards punitive damages to Plaintiffs in the amount of $1,769,832.04. The clerk is directed to amend the judgment to reflect this award. Pursuant to the schedule agreed to at the parties' May 2, 2013 status conference, renewed motions for judgment as a matter of law and for a new trial are due ten days from the issuance of this ruling. Signed by Judge Janet Bond Arterton on 08/05/2013.(Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARGARET B. FRASER and JOSEPH T. FRASER,
Plaintiffs,
v.
WYETH, INC., and WYETH PHARMACEUTICALS
INC.,
Defendants.

Civil No. 3:04cv1373 (JBA)

August 5, 2013

RULING ON PUNITIVE DAMAGES
Following a three-and-a-half week jury trial, the jury returned a verdict in favor of
Plaintiffs Margaret Fraser and Joseph Fraser, unanimously finding that the evidence at
trial warranted an award of punitive damages.

Pending before the Court is the

determination of the amount of punitive damages, if any, to which Plaintiffs are entitled
pursuant to Conn. Gen. Stat. § 52-240b.1
I.

Procedural Background
In their Complaint, Plaintiffs claimed that through its manufacture and marketing

of the hormone therapy medication Prempro, Wyeth violated the Connecticut Products
Liability Act (“CPLA”) through failure to warn, strict products liability, negligent failure
to test, study or investigate, and negligent misrepresentation; breached implied and
express warranties; violated the Connecticut Unfair Trade Practices Act (“CUTPA”); and
was liable for Joseph Fraser’s loss of consortium. Wyeth moved for summary judgment,

1

In their briefing on the issue of punitive damages, Plaintiffs raised the issue of
their entitlement to pre-judgment interest. However, the Court’s opinion is limited to the
issue of the amount of punitive damages to be awarded. The issue of interest will be more
appropriately addressed in a separate motion for pre- and post-judgment interest after
final judgment has entered in this case.

which the Court granted in part and denied in part, dismissing Plaintiffs’ breach of
warranty and CUTPA claims, but leaving all other claims for adjudication. Fraser v.
Wyeth, 857 F. Supp. 2d 244 (D. Conn. 2012).
A verdict was reached on April 18, 2012, finding Wyeth liable on all of Plaintiffs’
remaining claims—failure to provide adequate warnings, strict liability, negligent failure
to test, study or investigate, and negligent misrepresentation—and awarded Ms. Fraser
$3,750,000 in compensatory damages and Mr. Fraser $250,000 in loss of consortium
damages. (See Verdict Form [Doc. # 275].) The jury also found that punitive damages
should be awarded against Wyeth (see id.), the amount of which was to be determined by
the Court, pursuant to state statute. The parties submitted post-trial briefing regarding
the appropriate interpretation of the punitive damages provision of the CPLA, Conn.
Gen. Stat. § 52-240b, and the Court heard oral argument on this issue. The parties have
also submitted extensive additional briefing regarding the evidentiary and constitutional
issues surrounding a punitive damages award in this case.
II.

Discussion
Plaintiffs assert that, pursuant to § 52-240b, they are entitled to a punitive

damages award of twice the amount of compensatory damages in this case, arguing that
the Court should employ a multi-factor test in reaching this determination. Defendants
counter that § 52-240b incorporates the common law rule that punitive damages are
capped at attorney’s fees and costs; that Plaintiffs have waived their right to recover
punitive damages in the amount of attorney’s fees and costs; that Plaintiffs have not
submitted sufficient evidence to support their claim for attorney’s fees and costs; that
2

there is insufficient evidence to support an award of punitive damages; and that even if
such award were supported by the evidence; the constitutional requirements of due
process dictate that an award of $0 punitive damages be entered.2
A.

Conn. Gen. Stat. § 52-240b
In this diversity action, Connecticut law governs the Court’s fashioning of a

punitive damages award. See Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., 492
U.S. 257, 278 (1989) (“[T]he factors the [fact-finder] may consider in determining the[]
amount [of punitive damages], are questions of state law.”). Under the CPLA, a plaintiff
may recover punitive damages “if the claimant proves that the harm suffered was the
result of the product seller’s reckless disregard for the safety of product users, consumers,
or others who were injured by the product.” Conn. Gen. Stat. § 52-240b. The CPLA
also sets out the procedure for awarding punitive damages: “If the trier of fact determines
that punitive damages should be awarded, the court shall determine the amount of such
damages not to exceed an amount equal to twice the damages awarded to the plaintiff.”
Id. Plaintiffs maintain that under the clear terms of this statute, and in light of the facts of
this case, they are entitled to a punitive damages award of double the compensatory
damages awarded in this case, i.e., $8,000,000.

2

Defendants also raise their argument regarding the sufficiency of the evidence to
support an award of punitive damages in their briefing on their prior motion for
judgment as a matter of law, and this issue will be more appropriately addressed when
that motion is renewed. Under Conn. Gen. Stat. § 52-240b, once a jury has determined
that punitive damages should be awarded, “the court shall determine the amount of such
damages.” (emphasis added). Therefore, pursuant to state law, the Court must first
determine the amount of punitive damages to be awarded and enter a final judgment in
the case. Once that determination has been made, Defendants are free to attack the jury’s
finding that punitive damages were merited along with the other aspects of the verdict to
which they object.
3

However, Connecticut has long recognized the common law rule that “punitive
damages serve primarily to compensate the plaintiff for his injuries and, thus, are
properly limited to the plaintiff’s litigation expenses less taxable costs.” Berry v. Loiseau,
223 Conn. 786, 827 (1992). Defendants argue that § 52-240b incorporates this common
law rule, and that Plaintiffs’ punitive damages should therefore be capped at their
reasonable litigation expenses.

The CPLA itself is silent as to whether § 52-240b

abrogated or subsumed Connecticut’s common law limitation on punitive damages. To
date, no Connecticut appellate court has addressed this issue, and several Connecticut
Superior Court decisions have reached opposite conclusions on the matter. Compare
Roome v. Shop-Rite Supermarkets, Inc., No. 020281250, 2006 WL 2556572, at *4–5 (Conn.
Super. Ct. Aug. 16, 2006) (awarding attorney’s fees in addition to punitive damages), with
R.I. Pools, Inc. v. Paramount Concrete, Inc., No. X05FSTCV095011707S, 2011 WL
6934779, at *8–9 (Conn. Super. Ct. Dec. 5, 2011) (“[T]he punitive damage award in this
case should cover the costs of litigation less taxable costs.”); Russo v. Conair Corp., No.
CV030483600, 2004 WL 1730136, at *5 (Conn. Super. Ct. June 30, 2004) (“The
Connecticut courts have . . . consistently limited punitive or exemplary damage awards in
Connecticut to costs in excess of taxable costs.”).

In the absence of binding state

authority, the Court must “carefully predict how [the Connecticut Supreme Court] would
resolve [this issue].” Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79, 82 (2d Cir.
1995).
Under Connecticut law, “[i]n determining whether or not a statute abrogates or
modifies a common law rule the construction must be strict . . . . We recognize only
those alterations of the common law that are clearly expressed in the language of the
statute.” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290 (1993). Thus, the Court must
4

strictly construe § 52-240b, and may only find that it abrogates the common law
limitation on punitive damages if such abrogation is clearly expressed in the language of
the statute. In reaching this determination, the Court is guided by Judge Underhill’s
recent analysis of § 52-240b in Izzarelli v. R.J. Reynolds Tobacco Co., 767 F. Supp. 2d 324
(D. Conn. 2010), on appeal at No. 11-3865 (2d Cir. 2011). In Izzarelli, Judge Underhill
examined the language and legislative history of § 52-240b and concluded that the statute
did not abrogate the common law cap on punitive damages. Judge Underhill based this
conclusion on the fact that the legislature had rejected proposed legislation that would
have awarded punitive damages “in addition to attorney’s fees” and laid out a multi-factor
test for calculating punitive damages. See id. at 328–29. Judge Underhill also concluded
that the common law limitation on punitive damages was consistent with the make-whole
legislative purpose of the CPLA to limit punitive damages awards in product liability
actions. See id. at 331.
Plaintiffs urge the Court to reject the holding in Izzarelli on the basis that the
language in § 52-240b capping punitive damages at twice compensatory damages evinces
a clear intent by the legislature to abrogate the previous common law cap. However, the
Court is persuaded by Judge Underhill’s reasoned analysis in Izzarelli. Section 52-240b’s
statutory cap on punitive damages would only conflict with the common law cap in the
rare cases where plaintiffs incur significant litigation expenses to recover nominal
damages. As such, the statutory cap “is wholly consistent with the purpose of the
[CPLA],” id. at 329, and its language alone fails to demonstrate a clear intent to abrogate
the common law rule. See id. at 332 (“Only in cases with minimal injuries will the
statutory cap on punitive damages conflict with the common law doctrine of punitive
damages, which seeks to make a successful plaintiff whole. I therefore conclude that the
5

legislature did not abrogate the common-law measure of punitive damages by enacting
section 52-240b.”); see also R.I. Pools, 2011 WL 693779, at *9 (“The federal court in
Izzarelli . . . declined to expand punitive damage awards under the [CPLA] beyond that
provided by common law. This court finds its rationale sound, and in the absence of any
state appellate authority construing the [CPLA] to the contrary, holds that the punitive
damage award in this case should cover the costs of litigation less taxable costs.”).
Plaintiffs also argue that if § 52-240b incorporates the common law method of
calculating damages, “Connecticut’s constitutional mandate favoring trial by jury is
circumvented.” (Pls.’ Reply on Punitive Damages [Doc. # 302] at 6.) However, a similar
claim was raised and rejected in Izzarelli. See Izzarelli, 767 F. Supp. 2d at 330 (“I find no
support for the assertion that, under the common-law rule, a party was entitled to a jury
determination of the cost of litigation.”). Cf. Berry, 223 Conn. at 827–29 (declining to
consider plaintiff’s argument that he had a constitutional right to have a jury determine
the amount of punitive damages under the common law rule).
Finally, Plaintiffs urge this Court to look to CUTPA and the Connecticut Uniform
Trade Secrets Act (“CUTSA”) in interpreting § 52-240b in order to conclude that the
CPLA does not cap punitive damages at litigation expenses less taxable costs. A similar
argument was also rejected in Izzarelli. See 767 F. Supp. 2d at 332. Both CUTPA and
CUTSA provide for an award of punitive damages in addition to an award of attorney’s
fees. See CUTPA, Conn. Gen. Stat. § 42-110g (“The court may, in its discretion, award
punitive damages . . . . to the plaintiff, in addition to the relief provided in this section,
costs and reasonable attorneys’ fees . . . .”); CUTSA, Conn. Gen. Stat. § 35-53(b) (“[T]he
court may award punitive damages in an amount not exceeding twice any award made
under subsection (a) and may award reasonable attorney’s fees to the prevailing party.”).
6

By contrast, the legislature declined to adopt similar language when enacting the CPLA,
and the CPLA only provides for attorney’s fees in the event of a frivolous claim or
defense. See Conn. Gen. Stat. § 42-240a (“If the court determines that the claim or
defense is frivolous, the court may award reasonable attorney’s fees to the prevailing party
in a products liability action.”). As a result of these differences, the Court does not find a
comparison to CUTPA or CUTSA instructive when construing the CPLA.
Therefore, the Court concludes that the CPLA incorporates the common law cap
on punitive damages, and Plaintiffs are thus entitled to a punitive damages award of no
more than their litigation expenses less taxable costs in this action.
B.

Litigation Expenses
In their post-trial briefing, Plaintiffs argue that should the Court determine that

the common law cap on punitive damages applies to punitive damages awarded under
§ 52-240b, they are entitled to a total award of $2,598,658.97 representing attorney’s fees
pursuant to the terms of their contingency fee agreement and the costs incurred during
the course of the litigation. Defendants argue that Plaintiffs waived their right to punitive
damages because they failed to submit evidence of their litigation expenses in the first
round of post-trial briefing on punitive damages; that Plaintiffs cannot collect attorney’s
fees because their contingency fee agreement is void; and that Plaintiffs’ evidence in
support of their costs is insufficient to support an award. The Court will address each of
these arguments in turn.
1.

Waiver

In the parties’ initial round of briefing on the issue of punitive damages, Plaintiffs
maintained that they were entitled to an award equal to twice the amount of the
compensatory damages, and failed to provide evidence of their litigation costs in the
7

event that the Court determined that the common law cap on punitive damages governed
punitive damages awarded under § 52-240b.

However, Plaintiffs requested an

opportunity to supply evidence of their expenses (see Pls.’ Reply on Punitive Damages at
1), and in a subsequent round of briefing, provided such evidence, including declarations
by Margaret Fraser, Neal Moskow, and Gregory Bubalo, copies of Plaintiffs’ contingency
fee agreements, and itemized lists of the costs incurred during litigation. (See Fraser Decl.
[Doc. # 315-2]; 2004 Contingency Fee Agreement, Ex. A to Fraser Decl; 2013
Contingency Fee Agreement, Ex. B to Fraser Decl.; Moskow Decl. [Doc. # 315-3]; Ury &
Moskow, LLC Costs, Ex. C to Moskow Decl; Bubalo Decl. [Doc. # 315-4]; The Bubalo
Firm Costs, Ex. A to Bubalo Decl.)
Defendants argue that by failing to provide evidentiary support for their claimed
litigation expenses in their initial brief, Plaintiffs waived their opportunity to submit such
evidence, and that such waiver cannot be cured by their untimely submission of
supporting documentation in conjunction with a later round of briefing. However, the
cases cited by Defendants in support of this argument stand for the proposition that
issues may not properly be raised for the first time in a reply brief. For example, in
United States ex rel. Karlin v. Noble Jewelry Holdings, Ltd., No. 08 Civ. 7826 (JGK)(KNF),
2012 WL 1228199, at *4–6 (S.D.N.Y. Apr. 9, 2012), the court held in a recommended
ruling that the relator’s motion for attorney’s fees should be denied without prejudice
where contemporaneous billing records were first submitted attached to a reply brief,
because the opposing party lacked the opportunity to challenge such records in opposing
the motion. See id. at *5 (“However it is improper for the Court to consider the Relator’s
evidence, including contemporaneous records, submitted for the first time in reply,

8

because that evidence was not submitted in response to any new material issues raised by
the defendants in their opposition brief.”)
Here, however, Plaintiffs submitted their evidentiary support in connection with
their motion for final judgment [Doc. # 315-1], and Defendants were given an
opportunity to respond to this evidence. Furthermore, in Karlin, the court simply
recommended that the motion for fees be denied without prejudice to renew, such that
the opposing party would be afforded an opportunity to respond to the relator’s evidence.
Moreover, Plaintiffs requested the right to provide evidentiary support of their litigation
expenses, which is incompatible with a finding of waiver. See Worth Cons. Co. v. Dep’t of
Public Works, 139 Conn. App. 65, 71 (2012) (“[T]o determine the presence of waiver,
there must be evidence of intelligent and intentional action by the petitioner of the right
claimed to be waived.” (internal quotation marks and citations omitted)). Therefore, the
Court finds that Plaintiffs have not waived their right to provide evidentiary support of
their litigation expenses, and the Court will consider the records provided by Plaintiff in
fashioning a punitive damages award.
2.

Contingency Fee Agreement

“[F]or an award of punitive damages, it is essential that evidence of the cost of the
litigation of the case being tried must be offered.”

Berry, 223 Conn. at 832–33.

“[Connecticut] case law, however, does not specify the type of evidence required to
support an award of punitive damages. . . . [and a] court [may] consider any evidence the
plaintiff submits” regarding his litigation expenses in fashioning a punitive damages
award. Id. at 833. “[The Connecticut Supreme Court] ha[s] long held that in a claim for
damages proof of the expenses paid or incurred affords some evidence of the value of the
services, and if unreasonableness in amount does not appear from other evidence or
9

through application of the trier’s general knowledge of the subject matter, its
reasonableness will be presumed.” Label Systems Corp. v. Aghamohammadi, 270 Conn.
291, 335–36 (2004).
Plaintiffs have submitted their contingency fee agreement, which provides for a
one-third contingency fee3 in the event that Plaintiffs’ recover a judgment, and an
additional 16.667% fee in the event that such judgment is appealed and plaintiffs’ counsel
agree to defend the appeal (see 2013 Contingency Fee Agreement at 2, 4), as evidence of
their litigation expenses related to reasonable attorney’s fees. The Connecticut Supreme
Court has frequently upheld punitive damage awards computed on the basis of
contingency fee agreements. See Berry, 223 Conn. at 831 (collecting cases). However,
Defendants argue that the contingency fee agreement is void as a matter of public policy
pursuant to Conn. Gen. Stat. § 52-251c, which sets a statutory cap on contingency fees in
personal injury actions, and as such, Plaintiffs may not rely on it in support of their claim
for litigation expenses, because it is not indicative of the amount of attorney’s fees
Plaintiffs might actually be required to pay.
Plaintiffs counter that Defendants lack standing to contest the validity of the
contingency fee agreement, suggesting that to do so could constitute tortious interference
with contract. “It is well settled that one who is neither a party to a contract nor a
contemplated beneficiary thereof cannot sue to enforce the promises of the contract.”
Tomlinson v. Bd. of Educ. of City of Bristol, 226 Conn. 704, 718 (1993) (internal quotation
marks and citations omitted).

In Dur-a-Flex, Inc. v. Laticrete Intern, Inc., No.

3

The original contingency fee provided for a 40% fee, but this amount was
reduced to 30% in a subsequent agreement in light of the amendment to Conn. Gen. Stat.
§ 52-521c, which provided that while a party could waive the statutory cap on
contingency fees under Connecticut law, in no event could such a fee exceed 33.33%. See
Conn. Gen. Stat. § 52-521c(f).
10

CV065014930S, 2010 WL 2822742 (Conn. Super. Ct. June 21, 2010), the Superior Court
of Connecticut held that the defendant lacked standing to challenge the validity of the
plaintiff’s contingency fee agreement when disputing an award for attorney’s fees.

In

Dur-a-Flex, the defendant argued that the plaintiff’s contingency fee award was invalid
pursuant to Rule of Professional Conduct Section 1.5(c), because the agreement was not
in writing. The court held that the absence of a writing “does not afford Defendant the
opportunity to use said absence as a sword to reduce a reasonable attorneys fees award.
Defendant has no standing to challenge the nature of the agreement between the Plaintiff
and its attorney. The question is one of reasonableness.” Id. at *6. In so holding, the
court relied on the Connecticut Supreme Court decision in Mozzochi v. Beck, 204 Conn.
490, 500 (1987), which held that an opposing party in litigation lacks standing to sue the
attorney of its opponent based on violations of the Rules of Professional Conduct. Thus,
the Dur-a-Flex court rejected the defendant’s claim and considered the contingency fee
agreement in fashioning a reasonable fee award despite questions regarding its validity.
Id. at 7. Based on the reasoning in Dur-a-Flex, the Court concludes that Defendants lack
standing to challenge the validity of Plaintiff’s contingency fee award in the context of the
determination of the amount of punitive damages to be awarded.4 Furthermore, the

4

Furthermore, Defendants’ reliance on Parnoff v. Yuille, 340 Conn. App. 147
(2012) to challenge the validity of the contingency fee agreement is misplaced. In Parnoff,
the Connecticut Appellate Court determined that a contingency fee agreement that called
for a forty percent fee violated § 52-251c, and held that an attorney could not bring a
cause of action for breach of contract under such an agreement even where damages were
limited to the statutory cap. Id. at 169–70. However, in Parnoff, the jury determined that
the client had not waived the requirements of § 52-251c in the original fee agreement. At
the time Plaintiffs’ original contingency fee agreement, which called for a 40%
contingency fee plus a 16.667% in the event of an appeal, was signed, an individual could
waive the statutory cap. See In re Estate of Salerno, 42 Conn. Supp. 526, 534 (Super. Ct.
1993) (“The benefits of § 52-251c can be waived.”). Defendants point to no case law
11

Connecticut Supreme Court has recognized that the terms of § 52-521c do not “govern a
trial court’s discretion in assessing the amount of punitive damages to be awarded to a
party who has a contingency fee agreement with his attorney.” Berry, 223 Conn. at 831.
Thus, the Court will consider the contingency fee in setting the amount of punitive
damages to be awarded.
“[W]hen a contingency fee agreement exists, a two step analysis is required to
determine whether a trial court permissibly may depart from the fee agreement in
awarding a reasonable fee as punitive damages.”

Welsh v. Martinez, No.

HHDCV106012959, 2012 WL 6743586, at *1 (Conn. Super. Ct. Dec. 5, 2012) (citing
Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 270 (2003)).

The Connecticut

Supreme Court explained this analysis as follows:
If the agreement is, by its terms, reasonable, the trial court may depart
from its terms only when necessary to prevent “substantial unfairness” to
the party, typically a defendant, who bears the ultimate responsibility for
payment of the fee. By contrast, if the trial court concludes that the
agreement is, by its terms, unreasonable, it may exercise its discretion and
award a reasonable fee in accordance with the factors enumerated in rule
1.5(a) of the Rules of Professional Conduct.
Schoonmaker, 265 Conn. at 270–71 (internal quotation marks and citations omitted).
“The [Connecticut] Supreme Court has also stated that ‘the reasonableness of the
contingent fee percentage itself may also be influenced by the statutory requirements,’
referencing § 52–251c as support for this statement.” Welsh, 2012 WL 6743586, at *1
(citing Schoonmaker, 265 Conn. at 270–72.) Here, the Court concludes that Plaintiffs’
contingency fee agreement providing for a 33.33% contingency fee is reasonable, in light
showing that the ability to waive the statutory cap was limited prior to the amendment to
§ 52-521c prohibiting the waiver of a fee greater than 33.33%. Thus, while the validity of
the 2013 contingency fee agreement remains an open question, it appears that the 2004
contingency fee agreement would have been valid when it was signed.
12

of Conn. Gen. Stat. § 52-251c(f), which states that a contingency fee of 33.33% is the
maximum fee to which an individual may agree when executing a waiver under that
provision. The Court finds no reason to depart from this fee on the basis of substantial
unfairness.
Plaintiffs contend that they are entitled to an additional award of appellate fees in
the amount of 16.667% pursuant to their contingency fee agreement. Under Connecticut
law, appellate fees may only be recovered if they are authorized by contract or by statute,
and “[t]he decision whether to award such fees rests in the exercise of discretion by the
trial court.” Premier Capital, Inc. v. Grossman, 92 Conn. App. 652, 658–59 (2005). While
Defendants lack standing to challenge the validity of Plaintiff’s contingency fee award, the
Court has serious concerns regarding the propriety of a fee agreement providing for an
additional 16.667% appellate fee on top of the 33.33% fee of $1,333,333.33, especially in
light of the legislature’s clear instruction in Conn. Gen. Stat. § 52-251c that fees greater
than 33.33% are contrary to the public policy of this state. Therefore, the Court declines
to exercise its discretion to award punitive damages in excess of the 33.33% fee in
Plaintiffs’ contingency fee agreement.
3.

Costs

“Litigation expenses may include not only reasonable attorney’s fees, but also any
other nontaxable disbursements reasonably necessary to prosecuting the action.” Berry,
223 Conn. at 832. In support of their litigation costs, Plaintiffs have submitted the
declarations of attorneys Neal Moskow and Gregory Bubalo, in addition to itemized cost
sheets listing the costs incurred by each firm related to this case. Defendants argue that
this documentation is insufficient to show that any of the claimed costs were related to or
necessary for the litigation. Specifically, Defendants argue (1) that Mr. Moskow’s trip to
13

Chicago to observe an ongoing HRT trial was unrelated to this action; (2) the ledger
includes unexplained payments to American Express, Hatch, LLC, Fogut Consulting, and
Jury Watch; (3) the ledger contains duplicative copying, research and postage charges by
both firms representing Plaintiffs; (4) Plaintiffs’ costs for fees paid to attorneys, witnesses,
and Margaret Fraser herself for travel expenses were not necessary to the litigation; (5)
Dr. Cheryl Blume’s fee is not reasonably related to this case because she gave non-case
specific testimony at trial; and (6) Plaintiffs have included taxable costs, such as filing fees,
marshal fees and expert medical witness fees, which are not recoverable as punitive
damages.
Connecticut courts do not require specific documentation of costs and fees in
order to award punitive damages based on litigation expenses, and the court may
consider any evidence Plaintiffs offer for the purpose of calculating the costs related to
this litigation. Berry, 223 Conn. at 833. Thus, the Court will consider the itemized ledger
submitted by plaintiffs’ counsel, in conjunction with the Moskow and Bubalo
declarations representing that these fees were related to the instant action, as evidence of
the costs incurred by Plaintiffs. Furthermore, the Court is well aware that the litigation of
this case has been an extremely contentious process drawn out over the course of nearly a
decade, during which countless hours, gallons of ink, and forests of trees have already
been expended in pursuit of the resolution of the legal issues and the trial verdict.
Therefore, despite the high costs claimed by Plaintiffs, this amount does not strike the
Court as inherently unreasonable in the context of this action.
However, courts in this state will not award costs where these costs are not
supported by evidence tending to show that they are reasonable and related to the action
under consideration. See, e.g., Gerner v. Applied Industrial Materials, No. X08-CV-0214

0192069-S, 2005 WL 1805670, at *10 (Conn. Super. Ct. June 30, 2005) (declining to award
costs for “an unexplained ‘adjustment’ of $4,820.59”); Gorfien v. Logan, No. 279006, 1990
WL 283697, at *1 (Conn. Super. Ct. Sept. 17, 1990) (declining to award costs where there
was “nothing before the court which would enable the court to determine whether the
claimed $3,392.41 [wa]s in fact a reasonable charge limited to” the preparation of
evidence deemed admissible at trial). As Defendants correctly point out, many of the
entries in Plaintiff’s cost ledger are vague and not self-evidently related to this litigation.
For example, the costs attached to the Bubalo Declaration include $15,361.41 in
unidentified American Express charges. (See The Bubalo Firm Costs.) Furthermore, the
costs attached to the Moskow Declaration include $1,165.95 in charges related to travel to
Chicago to observe another HRT trial. (See Ury & Moskow, LLC Costs.) While Attorney
Moskow argues that his trip was helpful in preparing for this trial, the Court fails to see
how such costs were vital for the litigation of this action. Therefore, the Court will
exclude the American Express charges and the Chicago travel costs from the punitive
damages award.
Defendants are also correct that Plaintiffs may not recover taxable costs as a part
of a punitive damages award. See Waterbury Petroleum Products, 193 Conn. 208, 234–35
(1984) (reaffirming rule that the common law limits punitive damages to the expense of
litigation less taxable costs). Pursuant to District of Connecticut Local Rule 54, the fees of
the clerk and marshal, the fees of the court reporter related to one original and one copy
of trial transcripts, and witness fees, including expert witness fees not in excess of
statutory limits are all taxable. However, Plaintiffs’ ledger of costs include filing fees,
marshal fees, court reporter fees, and witness fees without clearly delineating between
taxable and non-taxable costs. To remedy this inattention, the Court will reduce the
15

remaining claimed costs by twenty-five percent in calculating the punitive damages
award.
C.

Amount of Award
“If awarded, punitive damages are limited to the costs of litigation less taxable

costs, but, within that limitation, the extent to which they are awarded is in the sole
discretion of the trier.” Label Systems Corp., 270 Conn. at 335. Defendants urge this
Court to exercise its discretion in this respect and award $0 punitive damages, regardless
of the amount of litigation expenses Plaintiffs incurred in this suit. However, by capping
punitive damages at the amount of litigation expenses less taxable costs, the ostensible
purpose of the common law rule of punitive damages is to make a plaintiff whole. See
Izzarelli, 767 F. Supp. 2d at 332. The Court therefore concludes that an award equal to
the full amount of permissible attorney’s fees and costs proved by Plaintiffs is appropriate
in this action, as it is sufficient, but not greater than necessary, to achieve this purpose.
Plaintiffs also assert that they will be responsible for paying a common benefit cost
assessment equal to five percent of their gross recovery to the Plaintiffs Steering
Committee of the In Re: Prempro MDL. (See Moskow Decl. ¶ 12.) Plaintiffs argue that
in order to be made whole by a punitive damages award, Defendants should be ordered to
pay punitive damages in the amount of their attorney’s fees and costs, in addition to the
entire amount of the common benefit assessment. Defendants argue that because the
common benefit assessment was not included in the original 2004 contingency fee
agreement, and because it would increase the fee paid by Plaintiffs above the 33.33%
statutory cap, such fee is invalid. As discussed above, Defendants lack the standing to
challenge the propriety of such a fee under the Rules of Professional Conduct or § 52251c. However, Defendants also argue that the common benefit assessment, which would
16

be paid to a trust fund, the disposition of which is as of yet unknown, does not resemble
the type of reasonable costs and fees typically recognized as litigation expenses in punitive
damages awards in this state. Plaintiffs point to no case law in which a similar cost was
included in a punitive damages award based on litigation expenses, and thus the Court
will not include the common benefit assessment in its punitive damages award.
Therefore, the Court awards punitive damages in the following amount:


$1,333,333.33 in attorney’s fees, representing a 33.33% fee based on the
$4,000,000 award of compensatory damages, pursuant to Plaintiffs’
contingency fee agreement;



$18,997.61 in costs for Ury & Moskow (reflecting the exclusion of the
$1,165.95 in costs for travel to Chicago, and the 25% reduction discussed
above); and



$417,601.10 in costs for The Bubalo Firm (reflecting the exclusion of the
$15,361.41 in American Express charges, and the 25% reduction discussed
above).

This reflects a total award of punitive damages in the amount of $1,769,932.04.
Defendants argue that even a minimal punitive damages award would violate their
constitutional due process rights, would be excessive as a matter of Connecticut law, is
precluded by Defendants’ exposure to other punitive damages awards, and is not
supported by the evidence.5 In Izzarelli, the district court held that “[b]ecause punitive
damages are set at plaintiff’s cost of litigation, many of [the defendant’s] arguments

5

Defendants also argue in their briefing that their purported “substantial wealth”
is irrelevant to the issue of punitive damages. Because punitive damages were calculated
based on Plaintiff’s litigation expenses, without reference to Defendants’ net worth, the
Court need not address this argument.
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concerning its good conduct and due process rights are moot.” 767 F. Supp. 2d at 334.
Izzarelli went on to note that an award of litigation costs imposed under the Connecticut
common law limitation of punitive damages comported with the requirements of due
process based on the factors laid out by the Supreme Court in State Farm Mutual Auto.
Ins. Co. v. Campbell, 538 U.S. 408 (2003) and BMW of North America v. Gore, 517 U.S.
559 (1996), because there, as here, such an award was directly related to the harm suffered
by the plaintiff, in that it sought to make her whole by shifting the cost of pursuing the
litigation to the defendant, and because the punitive damages award was less than half the
compensatory damages award, which was well within the outer limit on the damages
ratio established by the Supreme Court.

Id.

However, to the extent that any of

Defendants’ due process arguments survive, they have also been raised in the post-trial
briefing of Defendants’ motion for judgment as a matter of law, and the Court will
address those arguments in connection with its ruling on that motion.

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III.

Conclusion
For the foregoing reasons, the Court concludes that Plaintiffs are entitled to

punitive damages in the amount of $1,769,932.04. The clerk is directed to amend the
judgment to reflect this award.
Pursuant to the schedule agreed to at the parties’ May 2, 2013 status conference,
renewed motions for judgment as a matter of law and for a new trial are due ten days
from the issuance of this ruling. The Court will rely on the parties’ previous post-trial
briefing in considering those motions, and the parties are reminded not to submit
duplicative materials to the Court.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 5th day of August, 2013.

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