Hebert et al v. Comair, Inc. et al
OPINION & ORDER: It is ORDERED that: (1) The Rapoport Law Offices are to be reimbursed for payments in the amount of $56,150.73. (2) The Rapoport Law Offices are entitled to payment for attorney fees in the amount of $715,000.00, (3) Motley Rice LLC and its local counsel, Wilson, Polites & McQueen, are entitled to payment for attorney fees in the amount of $245,500.00. (4) The Duhon Firm is entitled to payment for attorney fees in the amount of $56,245.00. (5) If no objection to this Order is filed within 10 days, the Court will issue a separate order directing the Clerk to issue checks to distribute the funds deposited in the Court Registry Investment System. Signed by Judge Karl S. Forester on June 9, 2011. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION (MASTER FILE) NO. 5:06-CV-316 - KSF
IN RE: AIR CRASH AT LEXINGTON, KENTUCKY, AUGUST 27, 2006
Hebert, et al. v. Comair, et al., No. 5:07-CV-320
OPINION AND ORDER
This matter is before the Court on the allocation of attorney’s fees among former and
present counsel for the Plaintiffs, Jamie, Lauren and Mattie-Kay Hebert.1 The issue having been
fully briefed, it is ripe for consideration by the Court.
In this case, none of the teams of attorneys who represented Plaintiffs will be adequately
compensated for their time and effort. Plaintiffs abruptly changed counsel teams twice, resulting
in much reinventing of the wheel. Plaintiffs also were very demanding and uncooperative.
Moreover, Plaintiffs adamantly refused to accept any settlement offer. Every other one of
the Flight 5191 forty-nine passengers and crew members, who had some of the best aviation
counsel in the nation, reached a settlement agreement that they thought was fair.
overwhelming majority of these settlements were reached prior to August 2008, almost three years
ago. By contrast, these Plaintiffs, after a jury verdict of $7.1 million for compensatory damages and
warnings that the Court was having serious second thoughts on the availability of punitive damages
and that the size of the underlying verdict was not likely to survive on appeal, still refused a
settlement offer of $8.1 million. As a result of the changes in counsel, the refusal to settle and
For clarity, the Plaintiffs are referenced by their first names, rather than their last name.
other factors discussed below, unusually large amounts of time and effort by all counsel were
necessary. Because Plaintiffs dispute their former counsels’ entitlement to any fees, it is necessary
to detail the circumstances leading up to the termination of their services.
Plaintiffs’ First Counsel Team
On Monday, August 28, 2006, one day after the crash of Comair Flight 5191, Jamie
Hebert’s mother, Linda Hebert, contacted Carl Duhon of Lafayette, Louisiana, for immediate
assistance for Jamie to take charge of Bryan Woodward’s body and his estate.2 That same day,
Mr. Duhon and attorney Elwood C. Stevens had a conference call with Jamie, who stated that she
was not married to Bryan Woodward, but they had lived together for many years and were the
biological parents of Lauren and Mattie-Kay. [DE 3896-2]. Later that day, Duhon and Stevens had
another conference call with Jamie in which they advised her that neither Louisiana nor Kentucky
recognized “common-law marriages.” Accordingly, they advised that she could assert tort claims
on behalf of her minor children, but not any claim on her own behalf.
On August 29, 2006, Duhon’s firm filed court documents in the Parish of Vermilion,
Louisiana, for Jamie to be appointed Tutor of her children and Administratrix of Woodward’s estate,
along with an Affidavit of Death, Domicile and Heirship. [DE 3625, Ex. A, B]. Each of these
documents state that Jamie was the “common-law wife” of Woodward and “no marriage ceremony
was held before a civil or religious authority,” or that Woodward was her “common-law husband”
and no marriage ceremony was ever held. These documents stated that the signer had read them
and believed the allegations of fact were true. They were signed under oath by Jamie’s mother,
Linda Hebert, and her sister-in-law, Allison Hebert. Duhon testified during his deposition that this
Bryan Woodward had long been estranged from his family, but his mother, Ramona,
arrived quickly in Lexington and claimed his body with the intent of cremating it.
information regarding marital status was obtained directly from conversations with Jamie. [Duhon
Depo. pp. 33-34].
On August 30, 2006, Duhon arrived in Lexington at Jamie’s request and worked to obtain
release of Woodward’s body. On August 31, Jamie signed an Attorney Employment Contract in
which she retained the Duhon Law Firm “to assist in the prosecution of the claim” and to represent
Jamie and her minor children “as legal counsel for all purposes, including, but not limited to
Succession and Tutorship proceedings in connection with the airplane accident....” The contract
provided that the Duhon Law Firm was to receive “a fee out of the gross recovery of 33%.” [DE
3877, Ex. 1A]. In support of his claim for attorney fees, Duhon provided voluminous documents
reflecting communications to and from Jamie during the months of September 2006 through March
2007 regarding the crash litigation. [DE 3897, 3898, 3899 and 3900].
Duhon contacted David Wise of Burke, Mahoney and Wise,3 Chicago, Illinois, whom Jamie
retained on September 7, 2006, jointly with Duhon, to represent Plaintiffs “as legal counsel in the
prosecution of all claims including but not limited to wrongful death and survival claims and all court
proceedings ... in connection with the airplane crash which occurred on August 27, 2006 ... and
resulted in the death of Bryan Keith Woodward....” This Attorney Employment Contract provided
“a fee out of the gross recovery of 33 1/3% of any monies received whether by settlement, trial or
otherwise....” The fee was to be split equally between the Duhon Law Firm and Burke, Mahoney
& Wise. [DE 3851, Ex. 2]. The Lexington firm of Miller, Griffin and Marks (“MGM”) was retained
as local counsel.
Duhon’s contemporaneous, handwritten notes from a meeting or phone conversation with
Jamie approximately on September 3, 2006, reflect that she said she and Bryan Woodward lived
together twenty-one years as a family, but were “never married.” [DE 3897, Ex. B4]. During a
September 5, 2006 meeting among Jamie, Duhon and Carl Devine of MGM, Duhon’s notes reflect
Neither David Wise nor Burke, Mahoney and Wise have claimed any fees in this case.
that Jamie and Bryan moved in together on September 3, 1986, but “Bryan did not want Jamie to
be a part of his family.” They “always presented themselves as a married couple.” Id. As a result
of this meeting, Devine prepared a Memorandum dated September 16, 2006, in which he
concluded that “[a] co-habitant does not have the ability to pursue a wrongful death/loss of
consortium claim in Kentucky unless the parties’ common law marriage is recognized by their home
state.” Id. This memo was transmitted to Jamie and later discussed with her. She was upset she
would have no claim for damages and even more upset that her children would learn her secret
that she and Woodward were not married. [DE 3896, p. 5].
Duhon, Wise and MGM’s Michael Cox drafted Plaintiffs’ Complaint, which was filed in
Kentucky state court twelve days after the crash. [DE 3897, Ex. B7]. The Complaint asserted
claims against various Comair entities for wrongful death, survival action, and punitive damages.
Counsel listed on the Complaint were David Wise, Carl Duhon and MGM’s Thomas Miller.
Subsequently, Duhon obtained two additional autopsies because of Jamie’s urging. He also
established paternity of the children. Duhon attended a September 26, 2006 Status Conference
in this Court and the September 27, 2006 inspection of the airport with Jamie’s knowledge. [DE
3987, Ex. B8, September 21, 2006, 8:14 p.m.]. He also attended the November 20, 2006 Status
Conference with her knowledge. [Ex. B30, November 15, 2006, 2:43 p.m.]. After sending Jamie
several photographs from the airport inspection, Duhon said Jamie suggested they use Google
Earth for views of the airport. [Ex. B10, October 2, 2006, 2:57 p.m.]. In multiple emails, Jamie said
she wanted to be apprised of everything regarding the lawsuit and that she appreciated Duhon’s
transmission of copies to her. [See, e.g., Id. at September 27, 2006, 8:55 p.m.; Ex. B20, October
12, 2006, 9:12 p.m.; October 13, 2006, 10:05 p.m.; Ex. B21, October 16, 2006, 9:41 p.m.].
On several occasions, Jamie asked Duhon to obtain photographs or videos for the jury.
[For example, Ex. B10, October 1, 2005, 1:45 a.m., obtain photograph of flowers Comair sent
(“That would look marvelous sitting on a table, along with the self-help books that were provided
at the base hotel, in front of the jury. What a joke-“); Ex. B12, October 7, 12:05 a.m., obtain videos
of Woodward at Lafayette and Texas airports (“I think it’s relevant for the jury to see him on the full
journey in a working capacity away from his family, that type of thing.4 We have to bring an
individual to the jury a real person, a person who was alive”); Ex. B27, November 1, 2006, 9:00
p.m. (“How do we get [photos from the scene], because somebody has them. Get the other
attorneys on this issue if any aren’t already on it”); Ex. B30, November 14, 2006, 9:06 p.m. (“Carl,
did you obtain copies of the original calls to the scene?”)].
She was emphatic that she wanted to be in charge of litigation strategy. “Right now, Carl,
I haven’t met everybody, and if we do not see eye to eye on important issues, I will be going with
somebody else.” “In addition, I won’t be settling so, if that is a question that the ‘majority’ will
decide upon, count me out on many things to come.” Ex. B17, 7:27 p.m. “When you say Barry
was detained [sic], did these fellas already detain [sic] him, because if that’s the case, I can’t agree
to anything like that. I have to be in on the decision of who will be detained [sic]. I do not want
those decisions being made for me.” “I have no intention of being part of any mediation.” “I think
this case is huge, and I don’t like the fact of other people looking for experts for me, long distance,
and deciding those things without my input.” [Ex. B23, October 18, 2006, 7:23 p.m.].
Jamie repeatedly asked about claims on her behalf and complained that her status was not
being recognized. On October 8, 2006 at 11:58 a.m., Jamie wrote: “Ok, Carl, am I correct in
understanding that these men are trying to connect me individually/-personally?” [Ex. B15]. Duhon
responded: “Yes everyone is trying to connect you individually to bring a claim.” Id. at 1:12 p.m.
On October 9 at 7:27 p.m., Jamie wrote: “Carl, I will also bring attention to the fact that after weeks
with the lawyers you chose, I am still not being recognized. I am not his next friend, Carl. I’m not
his friend. That was my husband, no matter what anybody wants to call it on paper.” [Ex. B17].
Jamie had a habit of inserting ellipses, especially in place of commas. For clarity, the
Court deleted them from quotations of her text when no words are omitted by the Court.
Later, she wrote: “In essence, if my legal team is having an issue with my standing, then the 12
people that I do not know will equally be confused.” Id. at 8:40 p.m.
Regarding their tax returns, Jamie said she “refused to file as married on the federal
document. I guess I considered that something that we had to file separately on.” [Ex. B23,
October 18, 2006, 9:16 p.m.]. On October 23, Jamie wrote: “I learned something this past
weekend about the property in Vermilion Parish. Bryan signed his portion over to me just weeks
after it was donated to both of us by my parents.5 I have the old papers where we were both listed
as the owners, if that would be useful at all in proving our existing relationship.” [Ex. B24, October
23, 2006, 1:11 p.m.]. Later that day, Jamie said she “had about thirty minutes to do some research
into my lack of spousal naming in this venture,” and she copied text from Wikipedia regarding
recognition of a “putative spouse.” [Ex. B25, 8:30 p.m.]. Duhon responded that Louisiana does not
recognize “putative spouse,” but that Ike Huval was doing some in-depth research on Louisiana
law and he would check on the status of Huval’s memo. Id. at 9:06 p.m. The next day, she wrote:
“I just need to know someone is working on this for me.... Honestly, not being recognized is very
difficult for me. ... I’m thinking the way we lived would be viewed by a judge as being married,
even if it held the putative spouse labeling....” [Ex. B25, October 24, 2006, 10:00 a.m., emphasis
added]. Shortly thereafter, she wrote that “it’s probable I could be recognized,” but she changed
her mind that evening after reading further. Id. at 10:30 a.m. and 8:43 p.m. She asked Duhon to
tell Ike to “look for something else.” She continued: “I did it to myself; I understand. It’s just so
hard for me to come to grips with, because we did not have just any kind of relationship.” Id. at
On September 9, 2003, Jamie’s parents deeded a portion of their property jointly to Jamie
and Bryan, each as single persons. On July 16, 2007, Jamie recorded an Act of Donation,
purportedly signed by Bryan on December 5, 2004, deeding his interest in the property to her. The
Donation is dated a year after the deed. Two years later she claimed she just learned of it.
On November 2, 2006, Duhon sent Jamie the “memo Ike prepared per your request.” [Ex.
B28 at 8:20 a.m.; Ex. B26, October 25, 2006]. This memo details the requirements for recognition
of a marriage under Louisiana law, including that “the parties must participate in a marriage
ceremony performed by a third person who is qualified, or reasonably believed by the parties to be
qualified, to perform the ceremony. The parties must be physically present at the ceremony when
it is performed.” [Memo, p. 2]. He explains that, if the marriage requirements in Louisiana were
met, the marriage would be recognized in Kentucky. However, because “they did not ‘celebrate’
their marriage in Louisiana, the law of Louisiana does not recognize them as married.” Id. at 4.
At 8:46 p.m. on November 2, Jamie says to thank Ike for his work, which she will read later, and
then asks “if the spousal issue is cleared up?” and if “we need to acquire another attorney to argue
the putative spouse issue?” Duhon says Ike Huval’s Memo was given to Jamie and discussed with
her. [DE 3896, p. 10; DE 3877, Ex. 1D].
The “spousal issue” is not mentioned again in emails for several weeks.
documents dated November 30 and December 1, 2006 is a handwritten note by Duhon saying,
“Jamie did not want to have these documents at home because she did not want the children to
find out she and Bryan were never married.” [Ex. B31]. On December 3, she tells Duhon she “had
to sneak that binder into the truck when the girls were taking their baths.” She thanks Duhon for
letting her “know what was in there.” Id. at 9:51 p.m.
During this time, much distraction was created by a letter from an attorney representing
Bryan’s mother, Ramona Keene, stating that Bryan and Jamie were never married, that Bryan’s
name was not on the children’s birth certificates, that the children had never used his name, and
that there was no presumption they were his children. [Ex. B31, November 29, 2006]. The letter
demanded proof they were his children or, absent proof, asserted that Ramona Keene should be
named the Administratrix and the beneficiary of Woodward’s estate. Jamie believed Ramona was
claiming that Brett, Bryan’s brother, fathered the children; Jamie advised Duhon that Brett was
willing to sign a legal document that they were not his children. Id., December 5, 2006, 10:18 p.m.
The next time marriage came up in emails between Duhon and Jamie was on December
8, 2006 at 10:05 a.m. [Ex. B32]. Jamie referenced the document for Brett to sign and asked Duhon
to include something like: “My brother, Bryan Keith Woodward, was married to Jamie Hebert, and
they had two children.... In essence, that would be the acknowledgment of marriage by at least
one member of his family.” Jamie included a “good news” postscript that read:
I had another lawyer review the status of my marriage paper, and he said the paper
I possess cannot be denied and the state of Louisiana acknowledges my marriage,
which should have never been up for debate. He said it is not now nor ever will be
disputed by this state. The ceremony we had is legal and if needed, I have the
authorization I need in a court of law. He said I do not need the title of putative
spouse, because I am or was his legal spouse.
[Ex. B32, December 8, 2006, 10:05 a.m.]. On December 12, Jamie again complains that the draft
document Brett is to sign “doesn’t mention my marriage.” She also said “[m]y marriage is ‘solidly
recognized’ in this state, which means it IS recognized by the state of Kentucky.” [Ex. B32,
December 12, 2006, 9:37 p.m.]. On December 13, Duhon asks Jamie to please “bring the
document you are referencing to the meeting tomorrow so I can look at it.” [Ex. B32, December 13,
2006, 8:59 a.m.].
On December 14, 2006, apparently after the meeting with Jamie, Duhon wrote a Memo To
File on the Marriage Certificate Issue. He said Jamie “was thinking of having a ‘friend’ she knew
in government obtain a marriage certificate for her.” He advised her that “obtaining a forged
marriage certificate would be a criminal offense....” He also said “if she did anything like that, we
would no longer be her attorneys because we would not let ourselves become involved with
anything criminal, and her obtaining a forged marriage license would be criminal.” [Ex. B33,
December 14, 2006].
Two days later, Jamie said she does not “know how much longer I can continue with Dave
[Wise] without knowing what work Dave is doing up there.” She adds: “The contract will have to
be revised, Carl.” She says she knows “I need other representation,” but adds she is “not saying
Dave is inadequate because I just don’t know what he’s working on.” Next, she laments:
[I]t makes no sense that I’ve had to seek outside help when I have attorneys.
Honestly, as I told you in your office, I don’t care how things got screwed up. It’s not
hard for me to realize that me and my family were not in their right mind when all
that took place. I don’t remember most of it, and the attorneys that I sought to fix
things said “We will fix things, Jamie, if you drop Carl.” Carl, I’m trying not to do
that, but you gotta help me, Buddy. I can’t have my own counsel working against
[Ex. B33, December 16, 2006, 11:00 a.m.]. She said she had taken up for Duhon “since you didn’t
see the document and I didn’t remember about the document Mom had when Bryan gave his
portion of the land to me. We have that document, by the way....” Id. She said they advised her
not to provide Duhon the “marriage document.” On Monday, December 18, Duhon responded that
he would help her, “but I need to see the document you are referencing.” [Ex. B33, December 18,
2006, 8:59 a.m.]. Jamie replied that Brett’s document “does not have our marriage stated
properly.” Regarding Duhon’s request for the marriage document she said:
As for you getting that document, I don’t have it like I said. The firm that does have
it does not believe you should handle anything in regards to the lawsuit because of
the things that already have to be corrected. The [point] is, Carl, I already have the
legality of the document. There is no need for me to hand it to you for you to have
an opinion on it.
Id. at 9:15 a.m.
Thereafter, the emails and documents do not discuss the “marriage issue.” Instead, the
comments relate to litigation strategy. Duhon continued to email updates, but Jamie responded
less and less. On February 13, 2007, Jamie sent Duhon a letter by Certified Mail stating that “the
current contract is cancelled,” that it “was signed under genuine duress and was thought only to
be a contract to open the succession in Louisiana in order to effectively retrieve bodily remains from
the state of Kentucky. Serious shock and a lack of proper follow-up communications allowed the
contract to continue despite regular questioning of certain procedures.” [Ex. B41, letter marked Ex.
1C]. On April 13, 2007, the Hebert case and many others were remanded to the Fayette Circuit
Court for lack of jurisdiction. This Court has no record of Duhon’s withdrawal from the case, but
his billing records reflect preparation of motions to withdraw around this time. [DE 3877, pp. 58-59].
Duhon’s Notice of Attorney’s Lien was filed July 31, 2008. [DE 3228]. He claims fees in the
amount of $127,942.00 for his time at a rate of $150 per hour and $153 per hour for Huval. [DE
3851, p. 3].
In opposing Duhon’s request for attorney fees, Jamie claimed Duhon was discharged for
cause. In particular, she says she discharged him because:
He was not qualified to handle the aviation case;
He told me he was going to get 50%, and I did not and do not agree this was fair
I was completely dissatisfied with the quality of Mr. Duhon’s work;
I really thought Mr. Duhon’s role was limited to helping us get the body back and
finishing the succession;
I came to realize over time Mr. Duhon was misleading me;
I now know the whole time Mr. Duhon was working this situation for his own best
interests and not my family’s; and
I completely lost faith and trust in Mr. Duhon for all of these reasons.
[DE 3890, p. 5]. To support this claim, Jamie Hebert attaches her affidavit, several emails dated
after the letter discharging Duhon, and one email from Duhon dated September 26, 2006 regarding
Woodward’s life insurance, wages, and workers’ compensation. Her affidavit states that Duhon
repeatedly stated his desire to work on a case against the airline, but she “always told Mr. Duhon
no” because she “wanted that case in the hands of specialists when the time came” and she did
not consider Duhon qualified. Id. at 3.
Jamie also attaches unsworn statements from herself, her mother, her father, her older
daughter, and Deborah Waters who is identified only as “family of Bryan Woodward.” [DE 3890,
JH Aff. Ex. 2]. These statements contend that Jamie did not hire Duhon for the wrongful death suit
and that she was in shock. Lauren states she attended many meetings with Mr. Duhon, and they
always ended with Jamie “telling Mr. Duhon that he did not have her permission to work in any
aspect with the litigation.” Lauren claims to have heard Jamie “verbally discharge him about 6
weeks after the crash occurred.” Id. These statements do not satisfy the evidentiary requirement
of 28 U.S.C. § 1746 that unsworn statements must be subscribed as true under penalty of perjury.
Accordingly, they will not be considered by the Court. See Little v. BP Exploration & Oil Co., 265
F.3d 357, 363 (6th Cir. 2001)(District Court properly disregarded a letter because it was an
Plaintiffs’ Second Counsel Team
Mary Schiavo of Motley Rice LLC was first contacted by Jamie Hebert on March 7, 2007.
Jamie forbade her to speak to Duhon. [DE 3861, p. 2]. A finalized attorney contract was sent to
Jamie June 19, 2007, but she insisted on a reduction of the contingency fee to 15 percent. Schiavo
later agreed, and the revised agreement was executed on July 16, 2007. Id., Ex. 2. Albert B.
McQueen, Jr. of Wilson, Polites & McQueen was retained as local counsel.6 Motley Rice agreed
that the amount of attorney’s fees “will not be increased by the work of co-counsel....” [DE 3861-2].
Schiavo states Motley Rice did not keep time sheets, but does have detailed records of
work and action in the case. Id. at 3. She generally summarizes the work as including filing
Federal Tort Claims Act notices with the federal government, drafting and filing two complaints and
one amended complaint, handling discovery, selection of experts, and preparation for trial. Id. at
3-4. She also obtained Social Security and Worker’s Compensation benefits for the children. Id.
at 3, n. 1. During Schiavo’s representation, a Plaintiffs’ Steering Committee, comprised of counsel
for all passengers, allocated responsibilities for briefing various issues, attendance at depositions,
selection of expert witnesses, and the like. [DE 284 and amendments].
Motley Rice also undertook substantial legal work and investigation to determine the factual
basis of Jamie’s claim of marriage. Motley Rice said this issue was important to determine if the
evidence Jamie offered was supported by the facts, to obtain a guardian other than Jamie because
of the serious conflict with her children, and to determine if the claim of marriage should be
withdrawn from the case. Id. at 4.
For convenience, both firms are referenced collectively as “Motley Rice.”
Jamie refused to cooperate or communicate about the issue. Accordingly, Motley Rice
reexamined documents and files in search of evidence. They examined check registries, looked
through photographs for evidence of wedding rings, spoke with Parrish clerks in search of license
applications, requested tax returns and repeatedly requested other information from Jamie to
support her claim. Id. at 5; DE 3917, pp. 13-18. They advised that the notary public, whom Jamie
claimed performed the ceremony, was not authorized to perform marriage ceremonies. [DE 3917-1,
p. 3]. Finally, they hired a former FBI handwriting analyst to examine Bryan Woodward’s alleged
signatures on the Act of Donation and the Affidavit of Matrimony. The expert opined the signatures
of Bryan Woodward were not authentic. [DE 3861, p. 5].
At that point, Schiavo admonished Jamie in writing repeatedly that she was jeopardizing not
only her claim, but also the claims of her children. [DE 3917-1, letters dated May 15, 2008; May 19,
2008; June 2, 2008; June 13, 2008]. Schiavo warned that, if the documents on which Jamie relied,
were determined to be inaccurate, Jamie could be subjected to other legal penalties. Id., May 15,
2008. Schiavo advised that she could not argue the marriage claim in court because of the lack
of evidence to support it and the existing evidence to the contrary. With the August 4, 2008 trial
on liability and pretrial deadlines looming, Motley Rice gave Jamie a June 6, 2008 deadline to
proceed without the marriage claim or to relieve them of their duties as counsel. [DE 3917-1, letter
dated June 2, 2008]. When Jamie would not follow their advice and resolve the conflict with the
claims of her children, Motley Rice moved to withdraw from the representation. [DE 2768]. The
motion to withdraw was granted June 28, 2008 and a Notice of Attorney’s Lien filed on July 8, 2008.
[DE 3003, DE 3098].
Jamie’s refusal to cooperate with Motley Rice on other issues is evident. On April 30, 2008,
Motley Rice wrote that a meeting with psychological experts was scheduled for May 12. [DE 3917,
p. 19]. On May 5, 2008, Schiavo wrote that she had been trying repeatedly through various means
to contact Jamie regarding deadlines to disclose expert witnesses and to schedule depositions
regarding the girls’ damages claims. She had made arrangements for evaluations of the girls by
a forensic psychiatrist and a psychologist on May 12 and 13 and was attempting to confirm the
meeting with Jamie and the girls on May 11 and their proceeding together to the evaluations. [DE
3917-1, May 5, 2008]. She also requested releases for the girls’ school records prior to depositions
duces tecum scheduled by Comair for May 15. Ongoing discovery and upcoming pretrial deadlines
were also noted. Id. On May 8, 2008, Schiavo advised that she still had not heard from Jamie, and
the experts could not hold their calendars open any longer. She noted the May 30 deadline for
expert reports and that filing a general report without evaluations could weaken the children’s
claims. [DE 3917-1, May 8, 2008]. Jamie emailed that she did not like the experts Motley Rice
obtained and that she wanted to find real experts. [DE 3917-1, May 15, p. 5]
Jamie refused other attempts by Motley Rice to visit or call. She insisted on communicating
through email because she said she could not talk on the phone without crying. On October 4,
2007, she wrote: “I honestly cannot work around deadlines.” “I don’t care how it appears if I don’t
meet one of their deadlines.” [DE 3917, p. 18]. On May 13, 2008, Jamie wrote that she could not
read other emails from Motley Rice now and was “no good on the phone.” Jamie advised that she
also would not open FedEx packages from them. Id. at 21.
Jamie claims the attorney/client relationship had fallen apart by May 2008 because Schiavo
had never met with her in person and delegated most contacts to a non-attorney. [DE 3910, p. 16,
n. 10]. It appears the relationship never got off to a good start and went downhill from there.
Motley Rice estimated the work on the case consumed a total of 2657.69 hours. [DE 3861,
p. 7]. It urges that its expert on pain and suffering testified beneficially at trial; however, that expert
did not testify. [DE 3910, p. 18]. The total claim for fees is based on its 15 percent contingency
contract. Motley Rice says it received a settlement offer of $3,500,000.00, 15 percent of which
would be $532,500. [DE 3861, p. 7].7 Alternatively, it claims entitlement to 15 percent of the entire
Later, Motley Rice said this offer was made after they had withdrawn. [DE 3917, p. 22].
$7.1 million verdict, which is $1,065,000.00, or a quantum meruit amount of $1,158,269.00 at a
partner rate of $650 per hour and an associate rate of $450 per hour. Id. Motley Rice notes: “we
also realize that the amount of fees is limited by the size of the verdict and the number of counsel
who have worked on this case, and we accept that this Honorable Court will of necessity adjust the
rates.” Id. These claims were modified somewhat in later briefing.
Plaintiffs’ Third Counsel Team
On July 31, 1008, Jamie signed a retainer agreement with the Rapoport Law Offices, P.C.
[DE 3909-1]. The Plaintiffs’ Steering Committee was dissolved August 4, 2008, after settlement
by other passengers and was no longer available to share the workload.
On November 20, 2008, Jamie Hebert filed in Bryan Woodward’s Louisiana probate case
a Petition to File Corrected Affidavits to Establish Heirship.8 [DE 3631]. Attached were the
affidavits of (1) Sonny Serigney, a Baptist minister from Grovetown Georgia, who claimed he
performed a marriage ceremony between Jamie Hebert and Bryan Woodward on December 5,
2004; (2) Kelly Hebert, Jamie’s brother, who claimed he attended and witnessed the wedding
ceremony; (3) Peggy Barrois, Jamie’s Aunt, who said she attended and witnessed the wedding
ceremony; (4) Janet Breaux, a friend of Jamie’s mother and a notary public, who claimed she
attended and witnessed the ceremony and, at its conclusion, notarized the signatures of Jamie
Hebert and Bryan Woodward on an Affidavit of Matrimony;9 (5) Linda Hebert, Jamie’s mother, who
said she was present and witnessed the marriage ceremony, and she had not read the documents
she swore to on August 29, 2006 that stated there had never been a marriage ceremony; (6)
Allison Hebert, Jamie’s sister-in-law, who said she also attended the wedding ceremony in 2004,
and she did not read the document she swore to on August 29, 2006 that stated there had never
There is nothing in the record that Rapoport assisted with these affidavits or filings. Jamie
frequently referred to “other lawyers” helping her, whose identity she kept secret.
Mr. Serigney’s name and signature are not on the Affidavit of Matrimony, however.
been a marriage ceremony; and (7) Jamie Hebert stating that she and Bryan Woodward were
married on December 5, 2004 by Reverend Sonny Serigney, that the foregoing persons attended,
and that Bryan Woodward signed the Affidavit of Matrimony. Id. Based on these affidavits, the
Louisiana probate court held on December 3, 2008 that Jamie was married to Bryan Woodward
and is his surviving spouse. Id. The Kentucky probate court ruled on March 27, 2009 that the
Louisiana decision “is to be given full faith and credit in the Kentucky probate action.” Id.
On October 1, 2009, the Supreme Court of Kentucky overruled prior precedent and held
that a loss of spousal consortium claim continues after the death of an injured spouse. Martin v.
Ohio County Hosp. Corp., 295 S.W.3d 104 (Ky. 2009). On October 7, Jamie moved to reinstate
her loss of consortium claim previously dismissed based on the now-overruled line of authority. [DE
3609, 3610]. The spousal consortium claim was reinstated October 9, 2009. [DE 3613].
Comair moved to add expert witnesses regarding the reinstated claim and to take the
depositions of Carl Duhon and Ike Huval regarding the documents filed in 2006. [DE 3623, 3625].
The Duhon and Huval depositions were taken on November 18, 2009 [DE 3672], and on the next
day, counsel gave notice that Jamie Hebert “withdrew her claim for damages for the loss of the
services, assistance, aid, society, companionship and conjugal relationship of Bryan Keith
Woodward.” [DE 3678].
The damages trial proceeded as scheduled on December 1, 2009 and resulted in a verdict
on December 7, 2009 as follows:
The destruction of Bryan Keith Woodward’s power to earn money: $1,350,000.
Bryan Keith Woodward’s physical pain and mental suffering, if any: $750,000.
Compensation for Mattie-Kay Hebert’s loss of consortium from the date of her
father’s death through her 18th birthday: $3,000,000.
Compensation for Lauren Hebert’s loss of consortium from the date of her father’s
death through her 18th birthday: $2,000,000
A trial on the issue of punitive damages was scheduled for July 19, 2010. [DE 3753]. At a
June 22, 2010 Pretrial Conference, the Court learned that Comair had submitted the Affidavit of
Matrimony and the Act of Donation, purportedly signed by Woodward, to experts who “concluded
they were forgeries.”10 [DE 3797, p. 11]. The Court removed Jamie Hebert as Next Friend for
Mattie-Kay and appointed David Royse in that capacity. [DE 3793]. Mr. Royse was Liaison Counsel
for the plaintiffs in the crash litigation and was more familiar than anyone with the claims and
defenses of the parties and the work of the Plaintiffs’ Steering Committee. Mr. Royse was
appointed Mattie-Kay Hebert’s Conservator by the Fayette District Court. [DE 3823]. He continued
in that capacity until Mattie-Kay was declared emancipated at age sixteen by a Louisiana Court on
December 21, 2010. [DE 3828]. Through no fault of the parties, it was necessary for the Court
to continue the trial on punitive damages virtually on the eve of trial and reschedule it for February
1, 2011. [DE 3815].
Throughout this case, Comair sought dismissal or summary judgment on all punitive
damage claims. [DE 1325, 3478, 3827]. The motion was denied by Opinions dated June 8, 2008
and May 28, 2009. [DE 2488, 3550]. At a Pretrial Conference on January 13, 2011, the Court
advised it was reconsidering its decision and continued the trial generally. [DE 3838]. Summary
Judgment on punitive damages in favor of Comair was granted February 2, 2011. [DE 3840].
Rapoport provided a copy of his Retainer Agreement in which Jamie Hebert agreed “to pay
as legal fee 15% of all amounts recovered.” [DE 3909-1]. The Agreement also contains a “fee
enhancing and limiting provision” as follows:
The parties agree all attorney lien claims by predecessor counsel, and all fees of
associate counsel, will be paid out of the proceeds of the 15% legal fee. However,
if these claims by other attorneys, in the aggregate, exceed 7.5% of the amounts
recovered, the fee percentage shall be raised by an appropriate percentage so that
Rapoport Law Offices, P.C.’s legal fee free of claims by other counsel will be 7.5%.
But, in no event, shall the total of all legal fees and expenses exceed 25% of the
These experts were in addition to and independent from the Motley Rice expert.
Id. Rapoport compares the duration of representation of the three legal teams and notes that his
offices represented the Heberts for a substantially longer time. [DE 3910, p. 2]. He compares the
total attorney hours claimed by each of the teams, after reducing Motley Rice from 2657.69 hours
to 993.77 hours because he says “the numbers don’t add up,” and argues that he has contributed
significantly more time (7470.4 hours). Id. at 3-4. He also demonstrates that his team advanced
over three times more in expenses. Id. at 5-6. Under this hourly analysis and assuming all claims
are correct and services of equal value, Rapoport argues he would be entitled to 78.15 percent of
available fees; 10.4 percent for Motley Rice; 9.12 percent for Duhon; and 2.33 percent for Wilson,
Polites and McQueen. He then argues the value of the services provided.
Relying on Boone v. Coe, 153 Ky. 233, 154 S.W. 900, 902 (1913), Rapoport urges that only
the “valuable” work counts for purposes of determining an award of fees. He particularly argues
that the client received very little benefit in terms of recovery of a fund from the work by Duhon or
Motley Rice. He notes that little damages discovery had been exchanged when he became
involved in the case. Id. at 14. The expert witnesses who testified at trial were all hired by
Rapoport, except Professor Baldwin, who was hired by all Plaintiffs. Even Prof. Baldwin had to
prepare a revised report after Rapoport talked with Woodward’s boss, Jeffrey Talley, and learned
of a significant promotion and pay raise that Woodward’s employer would probably have given.
Id. at 15-16. Rapoport argues the existence of Baldwin’s initial report with its low estimates caused
problems at trial that may have reduced the loss of earnings verdict. Id. at 16-17. Rapoport also
notes that no prior counsel talked with Dr. Corey, who conducted the official autopsy on Woodward
and testified about findings consistent with his breathing in the post-crash fire. This was crucial
testimony leading to an award of $750,000 for physical pain and mental suffering. Id. at 17.
Rapoport concludes that more than 90 percent of the valuable work was done by his firm.
Five percent or less was done by Motley Rice; 2.5 percent or less by Duhon; and 2.5 percent or
less by Wilson, Polites and McQueen. [DE 3910 at 18]. Finally, Rapoport considers the factors in
Rule 1.5(a) of Kentucky’s Rules of Professional Conduct for determining the reasonableness of a
legal fee and argues that those factors weigh heavily in his favor. Id. at 18-20].
The Marriage Issue
Mr. Rapoport claims that the “marriage issue” or “fraud argument” is merely a “red herring”
in at attempt to boost the fees to which former counsel may be entitled. [DE 3910, pp. 20-23]. With
respect to any potential criminal proceedings, Rapoport is correct that those issues are not relevant
here. However, for purposes of determining whether Mr. Duhon was discharged for cause and
whether the second trial team withdrew “with just cause,” the marriage issue is very important.
Kentucky law is clear that “when an attorney employed under a contingency fee contract
is discharged without cause before completion of the contract, he or she is entitled to fee recovery
on a quantum meruit basis only, and not on the terms of the contract.” Baker v. Shapero, 203
S.W.3d 697, 699 (Ky. 2006) (overruling LaBach v. Hampton, 585 S.W.2d 434 (Ky. App. 1979)).
Similarly, “an attorney who voluntarily withdraws from representing a client under a contingency fee
agreement is entitled to remuneration for services rendered under the doctrine of quantum meruit
if the withdrawal was with just cause.” Lofton v. Fairmont Specialty Ins. Managers, Inc., ___
S.W.3d ___, 2010 WL 4025920 (Ky. Ct. App. 2010) (motion for discretionary review pending).
Duhon Was Not Discharged for Cause
Whether Bryan Woodward and Jamie Hebert were legally married under Louisiana law was
an issue from the very outset of Duhon’s representation. Jamie could not claim Bryan Woodward’s
body because she had no proof they were married. It strains credibility beyond the breaking point
for Jamie to have argued with Duhon for nearly six months over whether she could bring a personal
claim against Comair, that her status was “not being recognized,” about her “lack of spousal
naming in this venture,” and her eligibility as a putative spouse if, in fact, there had been a marriage
ceremony less than two years earlier. If there had been a marriage ceremony so recently, why
would she write to Duhon on October 24, 2006, “I’m thinking the way we lived would be viewed by
a judge as being married, even if it held the putative spouse labeling”? [Ex. B25, 9:55 a.m.]. Why
would she tell Duhon that she did not want to have certain “documents at home because she did
not want the children to find out she and Bryan were never married”? [Ex. B31, handwritten note
after November 30]. Why did she explain on December 3 that she had to sneak that binder to
Duhon and that she appreciated him letting her know what was in it. [Ex. B31, December 3, 2006,
9:51 p.m.]. Why would Elwood Stevens, an attorney who has nothing to gain or lose in this matter,
provide an affidavit that Jamie told him and Duhon shortly after the crash that she and Bryan were
not married? [DE 3896-1]. [See also Ex. B4, September 5, 2006 handwritten notes in which Jamie
is telling Duhon and Carl Devine that she and Bryan never married].
Jamie’s self-serving statements in her current affidavit are refuted by the record of her
contemporaneous conduct and emails. The following statements are just one example: “I have
never read the contracts shown by Mr. Duhon. At some point much later he told me he would
receive half of any recovery and I told him he was mistaken....” “I have never read the documents
I signed for Mr. Duhon to this day.” [DE 3890, pp. 3-4]. Yet, on December 16, 2006, she wrote
Duhon that “[t]he contract will have to be revised,” and on March 21, 2007, she said: “You won’t
receive half of the third. I’m not sure how that works, but that much I do know.” Half of a third was
the exact amount Jamie agreed to pay Duhon under the contract she signed with Dave Wise. [DE
3851, Ex. 2]. How would Jamie know the precise contract percentage and why would she say the
contract had to be revised if she was not familiar with its terms? Perhaps this is a game of
semantics, and someone else read the contract to her, but she definitely was aware of its terms.
It is also interesting that Jamie aggressively negotiated a contract with Schiavo for a contingent fee
of 15 percent and a contract with Rapoport that included attorney liens within the 15 percent and
also placed a cap on the total fees. She apparently was a shrewd contract negotiator.
Not long after Duhon sent to Jamie the memo Ike Huval prepared on the requirements for
marriage in Louisiana, Jamie claimed in a December 8, 2006 email to Duhon that she had a
“marriage paper.” She repeatedly refused to let Duhon see it, however. Why would Duhon write
a contemporaneous memo to the file on December 14, 2006 that Jamie said she knew a friend in
government who could obtain a marriage certificate for her?
Only two days after Duhon
admonished her that her proposed course of action would be a criminal offense and the attorneys
would have to withdraw, Jamie wrote a very long email complaining about the work of Dave Wise,
telling Duhon that other attorneys had told her to drop Duhon from the case, and advising that the
“contract will have to be revised, Carl.” [Ex. B33, December 16, 2006, 11:53 a.m.]. Two days later
when discussing things that need to be corrected in the lawsuit, Jamie says to Duhon “nobody that
doubts my standing is going to handle that for me.” [Ex. B33, December 18, 2006, 9:15 a.m.]. The
coincidences are amazing.
Moreover, Jamie’s stated reasons for terminating Duhon are without merit. Her termination
letter said the contract “was signed under genuine duress.” [Ex. B41, February 13, 2007 letter].
Even assuming that Jamie’s statement is true, it does not address why she continued to ratify the
contract for months thereafter and use Duhon’s services. In Baker v. Shapero, 203 S.W.3d 697
(Ky. 2006), the client’s sister sought out attorney Shapero, and the client Chiu signed the
contingent Employment Agreement while in intensive care. Id. at 698. Chiu later discharged
Shapero and attempted to avoid an attorney’s lien by claiming “he was incapacitated at the time
he signed the employment contract.” Id. at 700. The court held:
Although Chiu may not have had the legal capacity to contract on the day the
employment agreement was executed, he clearly ratified his assent thereto by his
Id. Chiu fired Shapero after three and one-half months. Jamie continued working with Duhon for
more than five months. Her email on December 16, 2006 that the “contract will have to be revised,
Carl” belies her assertion that she was not aware of the contract or its terms. Shapero is controlling
on this issue.
Jamie’s statement that she thought her contract with Duhon was only “to open the
succession in Louisiana in order to effectively retrieve bodily remains from the state of Kentucky”
is refuted by her repeated emails with Duhon about the litigation. Duhon’s original contract and the
subsequent contract with Wise base their fees on a percentage of “the gross recovery ... of any
monies received whether by settlement, trial or otherwise.” [DE 3851-2]. What money was Duhon
supposed to recover if he was not to assist with the crash litigation? Duhon’s name was on the
original Complaint filed against Comair. [Ex. B7, September 13, 2006 letters enclosing Complaint
and contracts with attorneys]. Duhon attended the Status Conference on September 26 and the
airport inspection on September 27 with Jamie’s knowledge. [Ex. B8, September 20, 2006, 12:30
p.m.; September 21, 8:14 p.m.]. She asked Duhon to obtain photographs to be shown to the jury.
In November 2006, Jamie was making arrangements to meet with Duhon and Wise in Lexington
where all three would be attending this Court’s November 20 Status Conference. [Ex. B27,
November 1, 2006, 9:18 a.m.; Ex. B28, November 13, 2006, 11:05 a.m; Ex. B30, November 15,
2006, 2:43 p.m.]. On November 27, she emailed Duhon about an article mentioning a rift between
two groups of plaintiffs’ counsel regarding trial strategy. [Ex. B30, 10:36 p.m.]. These are but a
few of the many, many times she discussed litigation strategy with Duhon.
The additional grounds/excuses her present counsel suggest for the firing of Duhon ring
equally hollow in light of the entire record. The record provides very strong support for Duhon’s
argument that he was fired because he refused to participate in Jamie’s plan to deceive the courts
with her claim of a December 2004 marriage ceremony. It is the opinion of this Court that Mr.
Duhon was not discharged for cause. Accordingly, the Duhon Firm may claim fees in quantum
Schiavo Withdrew With Cause
The reason for Motley Rice’s withdrawal from representation of the Heberts is thoroughly
documented. Motley Rice could find no evidence to support Jamie’s marriage ceremony claim.
To the contrary, the evidence refuted it. The children did not have Woodward’s last name; his
name was not on their birth certificates; there were no joint or separate tax returns indicating a
marriage; there were no wedding photographs; there were no wedding rings; no photographs of
them wearing wedding rings; no application for a marriage license or certificate; affidavits were filed
by Jamie’s family repeatedly stating there was no marriage ceremony; and a forensic document
expert concluded that the signatures on the Affidavit of Matrimony and a Donation of Bryan
Woodward’s interest in certain real estate to Jamie were not likely signed by him. [DE 3917, June
2, 2008 letter]. Jamie even had trouble keeping up with her own story. She told Schiavo at first
that the ceremony was performed by a female notary public. [DE 3917, p. 14]. After Schiavo
advised that notary publics are not authorized to perform marriages in Louisiana, Jamie changed
her mind and said the ceremony was performed by a male minister. Id. at 14-17.
Schiavo also admonished Jamie that the marriage claim was hindering the overall case and
creating a conflict with Jamie’s representation of her children. [DE 3917-1, May 8, 2008; June 2,
2008]. When Jamie refused to drop the marriage claim, Motley Rice had no choice but to withdraw.
It is the opinion of this Court that Motley Rice’s withdrawal was “with just cause.” Accordingly,
Motley Rice may claim fees in quantum meruit.
Allocation of Attorney Fees
The Dispute Among Counsel
There are several disputes among the three counsel teams regarding the allocation of
available fees among them. Mr. Rapoport argues that fees in this case should be allocated based
on the relative value of the services provided by each of the three litigation teams. He contends
that his firm’s efforts contributed “more than 90 percent of the valuable work,” and the combined
efforts of the other firms contributed no more than 10 percent. [DE 3910, p. 18]. He caps the
funds available for attorneys’ fees at 15 percent under his contract. [DE 3910, p. 6]. He argues that
the “fee enhancing“ provision is not triggered because the value of the services rendered by the
first two litigation teams does not “exceed 7.5% of the amounts recovered.” [DE 3909, pp. 3-4].
The total recovery, including interest, is $7,152,638.31. [DE 3910, p. 6; DE 3921, p. 2]. Fifteen
percent of the recovery is $1,072,895.75. Under Plaintiffs’ analysis, the available funds would be
allocated as follows:
Wilson, Polites, McQueen
The Duhon Law Firm
Duhon argues, instead, that he is entitled in quantum meruit to the full amount of his fees,
$127,942.00. [DE 3921, pp. 2-3]. Schiavo seeks either 15 percent of the $3.5 million opening
settlement offer, $532,500.00; 15 percent of the $7.1 million recovery, $1,065.000.00; or
$1,158,269.00 based on quantum meruit. [DE 3861, p. 7]. They both argue that these “claims,”
even at the low end, exceed 7.5 percent of the amount recovered and thereby trigger the fee
enhancing provision under Rapoport’s contract. [DE 3921, p. 2; DE 3917, p. 23].
Under the fee enhancement theory argued by Duhon and Schiavo, the maximum available
funds for fees and expenses would be $1,788,157.58 ($7,152,638.31 x 25 percent). Total
expenses incurred by all counsel of $417,866.49 have been reimbursed, and this amount would
be deducted first to determine the amount available to satisfy the attorneys’ fee claims. [DE 3910,
p. 5; DE 3921, p. 3]. The remaining balance is $1,370,293.09. They argue that Rapoport’s
contract limits him to 7.5 percent of the recovery or $536,447.87, leaving a balance of $833,846.22.
When Duhon’s fees of $127,942.00 are subtracted, they claim a balance of $705,903.22 is
available for Motley Rice and Wilson, Polites & McQueen. [DE 3921, p. 4]. Motley Rice, while
denying that the terms of the Rapoport contract are applicable to them, state they “will reduce their
claims to $705,903.21 to fit within Rapoport’s contract to finally bring an end to this sorry affair.”
[DE 3917, p.24]. In summary, Duhon and Motley Rice would increase the available fund to 25
percent of the total recovery, subtract expenses, and allocate the balance as follows:
Motley Rice and
Wilson, Polites & McQueen
The Duhon Law Firm
Plaintiffs filed a surreply arguing that former counsel are misconstruing the contingent fee
contract to significantly enhance their recovery and to limit fees to current counsel. [DE 3930].
They note that the fee provision begins: “For services rendered and to be rendered, I agree to pay
as legal fees 15% of all amounts recovered.” Id. at 2. The fee enhancing provision must be read
in this context. The potential enhancement is for “attorney lien claims by predecessor counsel.”
An attorney’s lien under Kentucky law is only “for a reasonable fee” when the prior contract does
not apply. KRS 376.400. Rapoport argues:
[T]he fee enhancing and limiting provision was added to grant a benefit to Rapoport
Law Offices and not predecessor counsel. No provision in the contract allows fee
enhancement for the sole purpose of benefitting predecessor counsel. It is obvious
Jamie Hebert and David Rapoport never intended to abdicate to predecessor
counsel the power to trigger a 25% obligation for the Heberts and a 7.5% limit for
their attorneys by simply asking for more than 7.5% of the recovery and without
regard to the legal validity of that claim.
[DE 3930 at 4].
Plaintiffs reiterate that attorney Schiavo requests an hourly rate of $650,11 while Magistrate
Judge Todd held that “an hourly rate of $225.00 is a reasonable rate in this legal community” for
an experienced attorney in the Flight 5191 case given “the complexity of the litigation....” Wombles
The Court notes that Schiavo also requests a rate of $650 per hour for local counsel
McQueen and $450 per hour for three associates. [DE 3861, p. 6].
Charters, Inc. v. Orix Credit Alliance, Inc., 2009 WL 580220, at *3 (E.D. Ky. March 4, 2009).
Plaintiffs also argue that she claims “an outlandish number of hours given she never met her client
during the representation and never attended a single deposition.” [DE 3930 at 5].
Motley Rice responds that Rapoport’s contract does not limit the quantum meruit recovery
of predecessor counsel. [DE 3931, p. 2]. It also provides a detailed listing of work completed by
date and notes this listing does not include an estimated 1500 hours devoted to other issues, such
as the marriage, workers compensation and social security claims. [Id.; DE 3933]. It claims its
attorneys attended depositions and worked with the PSC on several issues, including a three-day
focus group mock jury trial of the case. [DE 3931, p. 3]. It also responds to Rapoport’s questions
regarding the experience and expertise of attorneys working on the case.
Quantum meruit Considerations
“Quantum meruit” in the context of a contingency fee agreement does not mean whatever
amount a discharged attorney chooses to claim. Nor does it mean the number of hours allegedly
spent by an attorney multiplied by a reasonable rate, without regard to whether the work
contributed anything toward the fund from which attorneys are to be paid. The rate times hours
calculation yields a “lodestar” amount that may be considered as a beginning point in determining
reasonable fees, particularly in fee-shifting cases. It is not the only factor or the ending point,
Quantum meruit is defined to be: “as much as he or she has deserved.” Black’s Law
Dictionary, West Pub. Co. (1996). In Boone v. Coe, 153 Ky. 233, 154 S.W. 900 (Ky. 1913),
Kentucky’s highest court said, in an action in quantum meruit to recover fees for personal services:
“The doctrine of these cases proceeds upon the theory that the defendant has actually received
some benefits from the acts of part performance; and the law therefore implies a promise to pay.”
Id. at 902. It continued:
[I]t must appear that the defendant has actually received, or will receive, some
benefit from the acts of part performance. It is immaterial that the plaintiff may have
suffered a loss because he is unable to enforce his contract.
Id. The burden is on the party seeking quantum meruit to demonstrate the reasonable value of the
part performance. Krohn, Causes of Action by Attorney to Recover Fees on a Quantum Meruit
Basis, 16 Causes of Action 85 (1988, 2010 update).
In Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), the court relied on its earlier decision in
Henry v. Vance, 111 Ky. 72, 63 S.W.273 (1901), regarding a quantum meruit award. Baker, 203
S.W.3d at 699. In Henry, the court discussed some of the considerations for a fee award, such as
“the extent of services rendered, and those to be rendered” and “such sum as is reasonably
represented by the unperformed part of the labor.” Id. at 276.
In Krause v. Rhodes, 640 F.2d 214 (6th Cir. 1981), the Sixth Circuit considered a case in
which the fund for attorneys’ fees was totally inadequate to compensate all counsel for their efforts.
The action arose out of the 1970 Kent State shooting cases. The first trial counsel received an
adverse verdict. ACLU counsel was retained and succeeded on appeal with a remand for new trial.
ACLU counsel retried the case for four days and then negotiated a $600,000 settlement in which
attorneys’ fees were limited to $50,000. The District Court awarded $33,740 in fees to the first trial
counsel, saying that fixing the fees to modify any contingent fee contract was indispensable “to
effect a settlement and to end this litigation which seemed as if it would never end.” Id.
First trial counsel appealed, claiming entitlement to his 33-1/3 percent contingency fee. The
Sixth Circuit said:
A federal district judge has broad equity power to supervise the collection of
attorneys’ fees under contingent fee contracts. As has often been stated,
where an attorney recovers a fund in a suit under a contract with a
client providing that he shall be compensated only out of the fund he
creates, the court having jurisdiction of the subject matter of the suit
has power to fix the attorney’s compensation and direct its payment
out of the fund.
Further “(t)he sum determined to be a reasonable attorney’s fee is within the
discretion of the district court....” Thus, an attorney’s right to contract for a
contingent fee is not completely beyond judicial control.
Krause, 640 F.2d at 218 (citations omitted). Despite the fact that “billing on a time and material
basis might equal or exceed the 33-1/3 contingent fee for which he contracted,” the court said that
was “not the only aspect to be considered in assessing the reasonableness of an attorney’s fee.”
Id. at 220. See also Green v. Nevers, 111 F.3d 1295 (6th Cir. 1997)(rejecting contingent fee claim
where city offered settlement within three weeks of filing complaint).
In Martin v. Buckman, 883 P.2d 185 (Okla. Ct. App. 1994), the court was faced with
allocation of fees between the discharged attorney, who substantially completed the litigation, and
the replacement attorney who built on that work in achieving a settlement. The court considered
the nature and services rendered by each lawyer. Id. at 195. It said:
The proportionalization of each attorney’s services, of course, is not to be evaluated
on an hourly rate basis, but consideration should be given to the nature of the case,
and the relative contribution of each attorney to the creation of the contingent
fee fund.... The main objective is to evaluate the totality of the involved lawyers’
efforts in terms of their proportional contribution to the creation of the fee fund to be
Id., emphasis added.
The Third Circuit had a Task Force of lawyers and judges from inside and outside the
Circuit develop recommendations for fair and reasonable compensation for attorneys, and related
issues, in light of ten years’ experience using the lodestar method of calculation in all cases.
Report of the Third Circuit Task Force, “Court Awarded Attorney Fees,” 108 F.R.D. 237 (1985).
The Task Force said “a distinction must be drawn between fund-in-court cases and statutory fee
cases since the policies behind the two categories differ greatly.” Id. at 250. “A key element of the
fund case is that the fees are not assessed against the unsuccessful litigant (fee shifting), but
rather are taken from the fund or damage recovery (fee spreading)....” Id.
Another difference between fund-in-court and statutory fee cases is that in the
former category there is a greater need for the judge to act as a fiduciary for the
beneficiaries (who are paying the fee).... Judicial scrutiny is necessary inasmuch
as the fee will be paid out of the fund established by the litigation, in which the
defendant no longer has any interest, and the plaintiff’s attorney’s financial interests
conflict with those of the fund beneficiaries.
Id. at 251. For fund-in-court cases, the task force recommended that fees be based on a
percentage of the recovery, rather than a lodestar analysis. It also recommended that the court
exercise its discretion in making adjustments based on the circumstances, particularly in classaction cases. Id. at 255-256. See also Dubin v. E.F. Hutton Group, Inc., 878 F. Supp. 616, 621
(S.D. NY. 1995) (upholding a percentage of recovery method for attorneys’ fees in a common fund
While Kentucky and the Sixth Circuit have not published a case closely on point, the Court
finds the analysis of these other jurisdictions persuasive and consistent with Kentucky law
regarding the reasonableness of attorneys’ fees. Rule 1.5(a) of the Kentucky Rules of Professional
Conduct (Supreme Court Rule 3.130) lists eight “factors to be considered in determining the
reasonableness of a fee”:
(1) the time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitation imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
(8) whether the fee is fixed or contingent.
SCR 3.130(1.5). These factors are more appropriate in a fee-shifting, lodestar case, but they have
some relevance here.
Before considering the above factors to determine the allocation of fees among counsel,
it is necessary to determine the base amount available. First, the Court finds, as discussed more
fully below, that the value of the contributions of former counsel toward the creation of the fee fund
does not exceed 7.5 percent of the total recovery. Accordingly, the fee enhancing provision of the
Rapoport contract is not triggered. Despite agreeing to operate under the Rapoport contract at one
point, Motley Rice later argued that it is not bound by the Rapoport contract. While technically
correct on that point, Motley Rice also agreed upon a 15 percent contingency contract and that any
fees owed to discharged attorneys “will be deducted from the attorney fees, if any owed to
MOTLEY RICE LLC at the conclusion of my case.” [DE 3861-2]. It is the opinion of the Court under
these circumstances that a fair and equitable fund for payment of all attorneys fees is 15 percent
of the recovery.
The total recovery, including interest, is $7,152,638.31. [DE 3910, p. 6; DE 3921, p. 2].
Fifteen percent of the recovery is $1,072,895.75. However, the first $56,150.73 in legal fees has
already been paid by current counsel. [DE 3910 at 7]. Mr. Rapoport should be reimbursed for that
amount, leaving a balance of $1,016,745.02 to be allocated among present and former counsel.
Allocation of Fees
Duhon Law Firm
Mr. Duhon’s initial work was under extreme time constraints. Jamie needed to recover
Woodward’s body before it was cremated. Duhon was successful in that effort. While this work
was very important to Jamie, was beneficial to her, and was very time consuming, it contributed
nothing to the fund out of which Duhon now seeks payment. Duhon’s agreement was to be
compensated only out of the fund he was to create. In this case, the “sum ... reasonably
represented by the unperformed part of the labor” is a huge one. Henry v. Vance, 111 Ky. 72, 63
S.W. 273, 276 (1901).
Jamie insisted early on that two additional autopsies on Woodward be performed out of
state. Rather than discourage this activity, Duhon accompanied the body to Louisville to secure
its safekeeping; located a medical examiner in Joliet, Illinois and made necessary arrangements;
drove to Chicago for the autopsy and a meeting with Jamie and David Wise; arranged yet another
autopsy; and drove to Evanston, Illinois to meet with another medical examiner. [DE3877,
Statement of Services, pp. 306]. The critical evidence at trial regarding Woodward’s pain and
suffering was the testimony of Dr. Tracy Corey, Kentucky’s Chief Medical Examiner, who
supervised the initial autopsy in Kentucky. All of the other autopsy activity contributed nothing to
the trial outcome.
Duhon wisely joined with experienced aviation counsel to take the litigation lead in this
complex matter. Duhon’s role quickly evolved into that of a communication center to keep Jamie
informed regarding progress in the litigation and to respond to her various demands. Duhon also
handled personal financial matters for the family. These were time-consuming jobs, but they
contributed virtually nothing to the fund. When one considers the time involved, the requisite skill
required, and the experience, reputation and ability of the counsel, these factors weigh much more
heavily in favor of Motley Rice and Rapoport.
It is the opinion of this Court that, for his services, Mr. Duhon should be compensated in the
amount of $56,245.00 (Fifty-six Thousand, Two Hundred Forty-five Dollars).
Motley Rice and Wilson, Polites & McQueen
Motley Rice’s agreement with Jamie Hebert was executed on July 16, 2007, nearly a year
after the litigation began. Mary Schiavo entered her appearance in this Court on September 11,
2007. [DE 642]. In support of its fee claim, Motley Rice states it filed Federal Tort Claims Act
notices, drafted and filed two complaints and one amended complaint, handled several sets of
interrogatories and requests for production and “took the case through all pretrial discovery.” Their
work records reflect that one of the complaints drafted was an FAA Bivens action, which they later
voluntarily dismissed. [DE 3861-3, p. 94]. Discovery responses on damages were filed. A
response to Comair’s motion to dismiss was filed November 13, 2007; however, it was barely more
than one page long and incorporated the responses of other plaintiffs. [DE 1058]. A response to
the United States’ motion to dismiss was merely a paragraph incorporating the response to Comair.
[DE 2298]. A response to Delta Air Lines’ motion for summary judgment parrots the responses
filed by other passengers. [Compare DE 2324, DE 2314, DE 2316, DE 2325]. Plaintiffs’ motion in
limine simply incorporated the motions of the Plaintiffs’ Steering Committee. [DE 2625]. Motley
Rice’s pretrial memorandum was a bare bones account in two pages. [DE 2631]. Certainly, not all
work was reflected in the docket of this case, but the Court has no reason to believe that other work
deviated from this pattern.
Motley Rice does not dispute Jamie’s claims that Schiavo never met with her in person at
any time during the eleven months of representation and only spoke with her by telephone once
for forty-five minutes. [DE 3887, p. 4]. Nor does it dispute that the primary contact between the firm
and Jamie was Dotty Snelly, a paralegal. The record shows that when Motley Rice attempted to
set up a meeting and scheduled expert examinations, it was thwarted by Jamie’s refusal to
communicate and refusal to have Lauren and Mattie-Kay examined by these experts. Motley Rice
does not dispute that associates attended depositions of witnesses and never asked any questions
of the witnesses. Id. at 5. It notes, however, that one of those associates was “a former airline
captain of a major US carrier.” [DE 3931, p. 3].
Motley Rice did not list the children of Bryan Woodward as witnesses for trial, nor were any
experts listed as witnesses on their behalf. [DE 2633, DE 2708]. Jamie apparently thwarted that
as well, according to Schiavo’s June 10, 2008 letter to Jamie which states: “You advised the girls
should not be witnesses and thus are not on the list.” [DE 3933-2]. Rapoport, on the other hand,
persuaded them that their testimony and the testimony of experts was very important to their case.
More than 70 percent of the ultimate trial verdict ($5 million of the $7.1 million) resulted from the
children’s testimony and the testimony of experts on their behalf.
Additionally, Schiavo provided information to economist Dr. Baldwin that resulted in a
projection of Woodward’s earnings at $50,000 per year. Rapoport interviewed Woodward’s boss,
Jeff Talley, obtained his affidavit and his video deposition that Woodward would have been
promoted to a management position in 2009 with an increase in pay to $80,000, and introduced
a supplemental report at trial with earnings projections at $80,000. [Transcript, December 2, 2009,
Motley Rice says its fees of $650 per hour for members and $450 per hour for associates
have been approved by other U.S. District Courts, but those courts are not identified. [DE 3861,
p. 6]. More importantly, the relevant consideration is “the fee customarily charged in the locality
for similar legal services.” Judge Todd’s approval of a rate of $225 per hour for one of the plaintiffs’
attorneys is closer to the mark in this locality.
Motley Rice states it “undertook a tremendous amount of legal work and investigation to
ascertain the factual basis for plaintiff’s claim of marriage.” [DE 3861, p. 4]. No doubt that is true,
as did the other attorneys, but that work did not contribute to the creation of the fund from which
Motley Rice seeks fees.
It is the opinion of this Court that Motley Rice should be compensated for their services in
the amount of $245,500.00 (Two Hundred Forty-five Thousand Five Hundred Dollars).
Rapoport Law Offices
Throughout the three years that Mr. Rapoport represented Jamie Hebert, this Court
observed his thorough preparation, his strong advocacy, and his noteworthy trial skills. Based on
this Court’s observations, Rapoport was overwhelmingly responsible for the $7.1 million Plaintiffs’
verdict. The $5 million loss of consortium verdict for the teenage children was record setting.
Motley Rice claimed it spent many hours preparing for the trial on liability, despite the fact
that the Plaintiffs’ Steering Committee played a substantial role in trial preparation. Rapoport, on
the other hand, successfully moved for partial summary judgment on the issue of liability. [DE 3475,
Rapoport’s October 8, 2008 status report said “[l]ittle discovery has been exchanged on the
damages issues in this case.”
[DE 3326]. His firm conducted most of the discovery on the
damages issues, including retention of Dr. Osofsky, her psychological evaluations of Lauren and
Mattie-Kay, Jamie Hebert’s deposition, video depositions of Dr. Corey and Jeff Talley, and a
revised earnings report from Dr. Baldwin. He persuaded Lauren and Mattie-Kay to testify at trial
along with their mother and grandfather. Motley Rice never met with any of these witnesses.
Motley Rice and Rapoport disagree about their relative “experience, reputation and ability.”
[DE 3930, DE 3933]. Based on the written record, both counsel appear well qualified. The Court
had the opportunity to observe Mr. Rapoport personally on a number of occasions, including the
damages trial. His skills in selecting and presenting the evidence and his handling of the unique,
all-male jury were among the best this Court has seen in over twenty years on the bench.
The key components of the verdict must be credited to him. The loss of consortium verdicts
totaling $5 million for Lauren and Mattie-Kay were a direct result of his persuading them to be
examined by Dr. Osofsky and to testify at trial. The pain and suffering verdict of $750,000 must
be attributed to the testimony of Dr. Corey, Professor Kennedy and Dr. Burton. According to Mr.
Rapoport, “neither predecessor plaintiff team worked with them or even attended their depositions.”
[DE 3910, p. 17]. Finally, Rapoport’s work with Jeff Talley and the amended Baldwin report which
increased Woodward’s lost earnings projection by 60 percent ($80,000 - $50,000 = $30,000
divided by $50,000 = 60 percent) had to have been an important factor in the lost earnings portion
of the verdict. Rapoport’s demonstrated trial talent was sufficient to cause Comair to make a
settlement offer of $8.1 million after the compensatory damages verdict, despite strong legal
arguments against punitive damages and in favor of reduction of the damages award on appeal.
It is the opinion of this Court that, for his services, the Rapoport Law Offices should be
compensated in the amount of $715,000.00 (Seven Hundred Fifteen Thousand Dollars).
IT IS ORDERED that:
The Rapoport Law Offices are to be reimbursed for payments in the amount of $56,150.73.
The Rapoport Law Offices are entitled to payment for attorney fees in the amount of
Motley Rice LLC and its local counsel, Wilson, Polites & McQueen, are entitled to payment
for attorney fees in the amount of $245,500.00.
The Duhon Firm is entitled to payment for attorney fees in the amount of $56,245.00.
If no objection to this Order is filed within ten days of its entry, the Court will issue a
separate order directing the Clerk to issue checks to distribute the funds deposited in the
Court Registry Investment System.
This June 9, 2011.
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