Letterman et al v. Burgess et al

Filing 416

ORDER entered by Judge Nanette Laughrey, granting in part and denying in part Plaintiffs' motion for attorney fees [Doc. 388]. (Barragan-Scott, Alana)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JIMMY LEE LETTERMAN and ANNETTE
FAY LETTERMAN,
Plaintiffs,
v.
WILLIAM D. BURGESS, III,
Defendants.

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No. 5:12-CV-06136-NKL

ORDER
Following entry of a jury verdict in their favor [Doc. 385], Plaintiffs Jimmy and Annette
Letterman move under 42 U.S.C. § 1988 for an award of attorney fees, costs, and expenses, and
ask that the award be included in the final judgment [Doc. 388]. The motion is granted in part
and denied in part.
I.

Background
Plaintiffs’ son, Danial Letterman, died in his cell at the Missouri Department of

Corrections’ Western Reception, Diagnostic and Correctional Center.

Plaintiffs sued for

violation of Danial’s civil rights under 42 U.S.C. § 1983 based on denial of medical care, and for
wrongful death under Missouri law.
After a four-day jury trial, the jury found in favor of Plaintiffs on the § 1983 claim for
denial of medical care, and against Defendants Lammers, Gastineau, Farnsworth, and Earls. The
jury awarded $256,793.29 for actual damages. This included $6,793.29 for funeral and burial
expenses, $100,000 for physical pain, and mental and emotional suffering experienced by Danial
before his death, and $150,000 for the nature and extent of the Constitutional injury. The jury
also awarded $55,000 for punitive damages ($10,000 apiece against Defendants Lammers and

Gastineau; $15,000 against Defendant Farnsworth; and $20,000 against Defendant Earls). Thus,
the total judgment on the § 1983 claim was $311,793.29. On the wrongful death claim, the jury
found in favor of Plaintiffs and against all Defendants except Jennings. The jury awarded
$1,000,000 in actual damages, apportioning fault as follows:

20% apiece to Defendants

Lammers and Gastineau; 25% to Defendant Farnsworth; and 35% to Defendant Earls.
On 1/13/2016, the Court denied Defendants’ motion for judgment as a matter of law, or
for a new trial. [Doc. 408.]
As the prevailing party, Plaintiffs move for $310,732.50 in attorney fees and $65,981.23
in costs and expenses. Plaintiffs request attorney fees for the three attorneys who prosecuted this
case: Ari Rodopolous at $350 per hour, Noah Wood at $375 per hour, and Mike Miller at $275
per hour. They also request paralegal fees at $125 per hour. The breakdown of hours and grand
total are as follows:
Attorney Rodopolous
Paralegal Tammy Reed
Attorney Wood
Attorney Miller
GRAND TOTAL

799 hours
240.8 hours
1.3 hours
1.8 hour
1,042.9 hours

The amount sought for costs and expenses covers items such as service of process, video
technology, experts, depositions, witness fees, travel, and copies, but not charges for computerassisted legal research.
II.

Discussion
Courts may award reasonable attorney fees to parties who prevail on Section 1983

claims. 42 U.S.C. § 1988(b). The starting point for determining a reasonable attorney fee is the
lodestar calculation: the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hanig v. Lee, 415 F.3d

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822, 825 (8th Cir. 2005). There is a strong presumption that the lodestar calculation represents a
reasonable fee award. City of Burlington v. Dague, 505 U.S. 557, 562 (1992).
The party seeking the award must submit documentation supporting the requested
amount, making a good faith effort to exclude hours that are excessive, redundant or otherwise
unnecessary. Hensley, 461 U.S. at 434. Counsel must exercise “billing judgment” and be
mindful that “hours that are not properly billed to one's client also are not billed to one's
adversary pursuant to statutory authority.” Id. (citation omitted). In assessing the amount
requested, courts may consider: (1) the time and labor required; (2) the novelty and difficulty of
the legal questions; (3) the skill requisite to handle the case properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee for similar work
in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client; (12) awards in similar cases.

United

Health Care Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 575 n.9 (8th Cir. 1996) (citing
Hensley, 461 U.S. at 434 n.3).
Furthermore, reasonable expenses of the kind a law firm would ordinarily bill its client
may be included in an attorney fee award under § 1988. Williams v. ConAgra Poultry Co., 113
F. App’x 725, 728 (8th Cir. 2004); Sapa Najin v. Gunter, 857 F.2d 463, 465 (8th Cir. 1988).
A plaintiff who prevails under a statute covered by § 1988 is normally entitled to fees,
and the amount of a fee award is reviewed for abuse of discretion. Cody v. Hillard, 304 F.3d
767, 772 (8th Cir. 2002) (citing Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998) and Jenkins v.
Missouri, 127 F.3d 709, 713–14 (8th Cir. 1997)).

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Here, Defendants do not dispute that Plaintiffs are prevailing parties. Defendants argue
that the amounts requested should be reduced because the hourly rates are excessive; some fees
represent work done on claims that were voluntarily dismissed or on which Plaintiffs did not
obtain relief; some amounts are cumulative or duplicative; and the total amount requested is
excessive in relation to the size of the jury’s award on the civil rights claim.
A.

Reasonableness of the hourly rates requested

Defendants contest the reasonableness of the hourly rates of $375, $350, and $275
requested by attorneys Wood, Rodopolous, and Miller, respectively, and $125 for paralegal time.
“As a general rule, a reasonable hourly rate is the prevailing market rate, that is, the ordinary rate
for similar work in the community where the case has been litigated.” Moysis v. DTG Datanet,
278 F.3d 819, 828 (8th Cir.2002) (quotation omitted). In deciding upon the appropriate rate,
“courts may draw on their own experience and knowledge of prevailing market rates.” Warnock
v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005). However, the prevailing market rate is only a
starting point. The rate charged should also take into account the experience, skill, and expertise
of the attorneys as well as the complexity, significance, and undesirability of the case. See Casey
v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993). See also Hendrickson v. Branstad, 934
F.2d 158, 164 (8th Cir. 1991) (affirming higher rate, based on comparable nationally prominent
federal civil rights counsel, rather than Iowa counsel, because of attorney’s status as recognized
national expert in civil rights law).
In support of the requested hourly rates, Rodopolous submitted an affidavit explaining
that the Wood Law Firm is a small, Midwest-based law firm specializing in consumer class
actions and concentrating almost exclusively in consumer law.

He states that Wood is a

founding partner of the firm, and has 15 years of civil trial experience; Miller is a civil litigator

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who had three years of experience at the time he worked on this case and before leaving the firm;
and the paralegal has 20 years of experience. Rodopolous states he has been practicing in
Missouri since 2006, and has nine years of civil trial experience. In his first four years of
practice, he worked at a large litigation defense firm in Kansas City, and his hourly rate was
$285 as a mid-level associate in 2010. Since 2010, he has worked on a contingent-fee basis. He
further states that the Wood Law Firm has been appointed as class counsel on multiple occasions
in state and federal courts, and been awarded fees at hourly rates about the same as or higher
than those presently requested. Rodopolous has handled or worked on about one civil rights case
per year since 2006, typically on a pro bono basis. [Doc. 389-5.]
Plaintiffs further point to the September 21, 2015 edition of Missouri Lawyers Weekly,
which summarizes the 2015 average billing rates of practicing attorneys in the Kansas City area
and elsewhere in Missouri. In the Kansas City area, rates ranged from $125 per hour to $600 per
hour, with an overall average of $328. Partner-level, Kansas City area attorneys’ rates ranged
from $315 to $600, and averaged $400; associate-level attorneys ranged from $125 to $380, and
averaged $228. Statewide, Missouri attorneys’ hourly rates ranged from $125 to $600, and
averaged $332. Statewide, support-staff rates ranged from $65 to $285 per hour, and averaged
$170. [Doc. 389, pp. 6-7; Doc. 395-1.]
In view of the general rule that a reasonable market rate is the ordinary rate for similar
work in the community where the case has been litigated, Moysis, 278 F.3d at 828, the Court first
observes that the $350 hourly rate requested by Rodopolous is only slightly higher than the
Kansas City-area average for all attorneys, $328. Wood’s $375 requested hourly rate is below
the Kansas City partner-level average of $400. Miller’s requested rate, $275, is higher than the
$228 associate-level rate. And the requested rate for paralegal time, $125, is below the statewide

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average rate of $170 for support staff.
Given the complexity of the case and the very high risk associated with a prisoner case,
and the average billing rates for Kansas City attorneys, the Court cannot say that the hourly rates
requested by the Plaintiffs’ counsel are unwarranted. Defendants disagree, arguing that the
attorneys’ hourly rates should be reduced to $225 for Rodopolous, $200 for Wood, and $175 for
Miller. Defendants point out that other attorneys with extensive experience in civil rights
litigation have been awarded from $225 to $365 per hour in various cases in the Eastern and
Western District of Missouri, and Plaintiffs’ attorneys here do not have as much relevant,
specialized experience. Plaintiffs respond that the case in which $225 was awarded was a
simpler one than the present case. Defendants also argue that the requested paralegal rate should
be reduced to $100 because that is the rate awarded in other cases in 2015. Defendants’
arguments do not change the above analysis. The examples they provide demonstrate a range of
fees that have been determined to be appropriate, not a bright line capping fees. In fact, based on
the Court’s own experience, the fees cited by the Defendants seem well below the hourly rates
normally awarded and billed.
Accordingly, Rodopolous shall be compensated at $350 per hour, Wood at $375 per hour,
Miller at $275 per hour, and paralegal Reed at $125 per hour.
B.

Reasonableness of number of hours requested
1.

Claims that were voluntarily dismissed or otherwise unsuccessful

Defendants argue that the amounts requested should be reduced for work associated with
claims that Plaintiffs voluntarily dismissed or lost on summary judgment or at trial.
“When a plaintiff obtains substantial relief and the lawsuit consists of closely related
claims, the award is not reduced because plaintiff did not prevail on every argument asserted.”

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Shrader v. OMC Aluminum Boat Group, Inc., 128 F.3d 1218, 1220 (8th Cir. 1997) (citing
Hensley, 461 U.S. at 435). However, when counsel’s work on a successful claim is unrelated to
the work on an unsuccessful claim, “no fee may be awarded for services on the unsuccessful
claim.” Id. at 434–35.
A court must first determine whether the plaintiffs’ claims were discrete. If the claims
were “distinctly different” and “based on different facts and legal theories,” then the court cannot
award attorney fees for services on the unsuccessful claims. Hensley, 461 U.S. at 434–35. But if
the claims involved a “common core of facts” or were “based on related legal theories,” the
Supreme Court has recognized that much of counsel’s time was devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.
Id. at 435. In such a case, the court cannot view a plaintiffs’ lawsuit as a series of discrete claims
and should “focus on the significance of the overall relief obtained by the plaintiff[s] in relation
to the hours reasonably expended on the litigation.” Id. at 435. The court may use its discretion
to determine the most appropriate way of assessing an award where the plaintiff achieved less
than complete success. Id. at 436.
a.

Claims against the extraction team: Defendants Finney, Sipes,
Eivins, Mowry, Neumann, and Wagers

During Danial’s incarceration, mental health staff became concerned he would harm
himself, reported to custody staff that he had been banging his head against the concrete wall in
his regular cell, and determined he needed to be placed on full suicide watch in a padded cell.
Danial would not voluntarily come out of his regular cell, so a six-person extraction team
consisting of Corrections Officers Finney, Sipes, Eivins, Mowry, Neumann, and Wagers
removed him and placed him in the padded cell. Plaintiffs filed the original complaint in
November 2012, and filed an amended complaint adding claims against the extraction team
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members in June 2013. [Doc. 37.] Plaintiffs deposed them around November 2013. Then in
January 2014, Plaintiffs voluntarily dismissed the extraction team members, and the parties
agreed they would be responsible for their own costs and fees. [Doc. 195.] Defendants argue
that because the claims against the extraction team members were unsuccessful, hours spent
drafting the amended complaint should be reduced, and time spent preparing for and attending
team members’ depositions should be disallowed; and time spent preparing witness outlines and
deposition designations should be reduced proportionally, by about 18% or 8.5 hours. [Doc. 95,
pp. 14-15.]
Time spent drafting amended pleadings to add ultimately unsuccessful claims concerning
the extraction team is not allowable, but Plaintiffs state that they did not include such time.
[Doc. 398, p. 8, “The time Plaintiffs’ counsel spent related to drafting or pursuing legal claims
against the extraction team, rather than investigating facts for use at trial, was not included in
Plaintiffs’ fee request.”]
With respect to time spent preparing for and attending depositions, Plaintiffs state it was
reasonable to do so, inasmuch as what happened in Danial’s concrete cell before he was moved
to the padded cell had to be investigated. The Department of Corrections lost 18 hours of video
footage of Danial in the concrete cell. The surgeon who attempted to treat Danial at the hospital
testified that the head injury was consistent with Danial’s head having been slammed into
concrete. Plaintiffs also state they requested that Defendants stipulate Danial’s head injury
occurred in the padded cell, but Defendants delayed doing so until the close of discovery.
[Doc. 398, p. 7.] As for witness outlines and deposition designations, the extraction team
members were on Plaintiffs’ witness list for trial, and the parties were ordered to provide
deposition designations 24 or 48 hours in advance if a witness’ testimony would be offered by

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written or videotaped deposition. [Doc. 335, pp. 4-5.] Finney was called to testify about the
extraction and move to the padded cell.
Preparing for and taking the depositions of the extraction team members, and preparing
witness outlines and deposition designations, was a reasonable expenditure of time in relation to
the success Plaintiffs achieved on the merits of their claims. See Simpson v. Merchants &
Planters Bank, 441 F.3d 572, 580 (8th Cir. 2006) (in considering whether to reduce a fee request,
court should consider “whether the expenditure of counsel’s time was reasonable in relation to
the success achieved”). Furthermore, the work was likely to have been done regardless of
whether Plaintiffs had at one point pursued claims against the extraction team, because Danial’s
behavior prompting his move to the padded cell, and what happened when he was moved there,
were central to Plaintiffs’ case. See Ewald v. Royal Norwegian Embassy, 2015 WL 1746375, at
*10 (D. Minn. April 13, 2015) (allowing attorney’s time for work on unsuccessful pretrial
motion, because the work would likely have been performed regardless, and directly supported a
successful claim).
Accordingly, the request for time spent preparing for and attending team members’
depositions, and preparing witness outlines and deposition designations, is allowed and will not
be reduced.
b.

Claims against Defendant Hammer

Hammer, another Corrections officer, was another defendant added to the amended
complaint and whom Plaintiffs later voluntarily dismissed. Hammer, a Corrections Officer I,
observed Danial in the padded cell through the hole in the door when Hammer arrived on third
shift. He testified at trial about the “contorted” position in which Danial was laying, and that it
looked like Danial had collapsed and was not sleeping. [Doc. 402, p. 132.] Hammer assisted in

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opening the door so Danial could receive medical attention.
Defendants argue that because the claim against Hammer was ultimately unsuccessful,
hours spent drafting the amended complaint should be reduced; time spent preparing for and
attending Hammer’s deposition should be disallowed; and time spent preparing witness outlines
and depositions designations should be reduced proportionally, by about 3% or 1.3 hours.
[Doc. 395, pp. 16-17.]
Plaintiffs state that they did not include drafting time related to the claim against
Hammer, and will voluntarily withdraw 0.60 hours that were included for time spent on the
stipulation of Hammer’s dismissal. [Doc. 398, p. 8.]
Time spent in relation to Hammer’s deposition will be allowed because it was a
reasonable expenditure of time in relation to the success Plaintiffs achieved on the merits of their
claims. See Simpson, 441 F.3d at 580. Furthermore, the work was likely to have been done
regardless of whether Plaintiffs had at one point pursued a claim against him, because the
custody staffs’ observation of Danial and the steps taken to obtain medical care for him were
central to Plaintiffs’ case. See Ewald, 2015 WL 1746375, at *10.
Accordingly, the request for time spent preparing for and attending Hammer’s
depositions, and preparing a witness outline and deposition designations, is allowed and will not
be reduced.
c.

Claims against Defendant Jennings

Because Plaintiffs lost their claim against Jennings at trial, Defendants argue that
Rodopolous’ time spent drafting the amended complaint, and other time spent relating to
Jennings is not recoverable. Plaintiffs state that they “already attempted to exclude time and
expenses spent pursuing unsuccessful claims against Jennings,” but they have specifically

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identified hours in the fee request relating to Jennings that they have now agreed to withdraw.
[Doc. 398, p. 11.] Specifically, Plaintiffs have agreed to withdraw Rodopolous’ time reflected
on entries dated 1/15/2014 – 10.8 hours, and 2/5/2014 – 1.4 hours, for drafting, reviewing, and
preparing filings in connection with Jennings’ motion for summary judgment. The request for
paralegal time spent in connection with the same motion, dated 1/7/2014 – 1.7 hours, will be
disallowed. The Court now turns to disputed entries.
Time spent drafting amended pleadings to add ultimately unsuccessful claims concerning
Jennings is not allowable. Defendants ask the Court to reduce the request for Rodoplous’ time
spent on this task by 7% or .60 hours. The time entry for the task (6/4/13) is not defendantspecific. [Doc. 389-1, p. 1.] While Plaintiffs state they “attempted to exclude” time spent on
unsuccessful claims against Jennings, they do not represent that they did so with respect to this
entry. The request will be reduced by .60 hours.
Defendants challenge Rodopolous’ time entry dated 1/7/14, 6.2 hours for time spent
performing legal research for all five Defendants who were moving for summary judgment,
including Jennings, and ask that it be reduced by one-fifth or 1.2 hours. Plaintiffs argue that the
research performed was common to all five, so it would have been performed regardless of
whether Jennings was a movant. The Court concludes the work was likely to have been done
regardless, and was reasonable. Therefore, the request will not be reduced. See Simpson, 441
F.3d at 580; and Ewald, 2015 WL 1746375, at *10.
Similarly, Rodopolous’ time spent preparing for depositions, which included Jennings’
deposition, paralegal time spent on deposition preparation, and Rodopolous’ time spent revising
Jennings’ trial outline will be allowed. Jennings played a central role in the events leading up to
Danial’s death, she testified at some length at trial, and her testimony supported Plaintiffs’

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success with respect to the other claims. It was reasonable if not critical for Plaintiffs to depose
Jennings regardless of whether she was a defendant, and to prepare for her testimony. Id.
Finally, Defendants request a reduction of Rodopolous’ time spent opposing the
interlocutory appeal filed by Defendants Jennings, Earls, and Farnsworth, inasmuch as the
Eighth Circuit ultimately held Jennings was entitled to summary judgment on the constitutional
claim against her. The total time Rodopolous spent was 88.3 hours, and Defendants ask that
one-third, or 29.4 hours, be disallowed. Plaintiffs agree that some reduction is appropriate, but
argue that a five-hour reduction is more reasonable, because much of the work on the appeal was
common to the three Defendants who appealed, and briefing and argument specifically related to
Jennings was not especially time-consuming.
Under the circumstances of this case, there was clearly substantial work done on appeal
that would have had to be done whether there were one or three defendants.

However,

recognizing that there were some distinctive factual issues, the Court will strike 12 hours of the
time requested for the appeal.
d.

Claims against Defendant Cluck

Judy Cluck was another defendant whom Plaintiffs named in the amended complaint.
Plaintiffs voluntarily dismissed their claims against her in January 2014, and the parties agreed
they would be responsible for their own costs and fees.

[Doc. 195.]

Defendants argue

Rodopolous’ time spent drafting the amended complaint should be reduced by .60 hours; time
spent preparing for and attending Cluck’s deposition, 3.65 hours, should be disallowed; and total
time spent preparing witness outlines and deposition designations should be reduced by 1.3
hours. Defendants also state that the total paralegal time spent on Cluck “appears to have been
de minimis” but is not specifically identifiable or severable from time spent on other activities

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and should be reduced in an unspecified amount. [Doc. 395, pp. 20-21.]
Cluck was not called to testify at trial and Plaintiffs offer no explanation demonstrating
that this time would have been performed regardless, or how it directly contributed to their
success on the other claims. Accordingly, attorney time spent drafting the amended complaint is
reduced by .60 hours; time spent preparing for and attending Cluck’s deposition, 3.65 hours, is
disallowed; and total time spent preparing witness outlines and deposition designations is
reduced by 1.3 hours. No reduction in paralegal time is made, based on Defendants’ concession
that such time appears to have been de minimis.
2.

Other time spent
a.

Plaintiffs’ suggestions in opposition to Defendants’ motion for
summary judgment in part

Defendants challenge 23.1 hours of Rodopolous’ time and 1.1 hours of paralegal time
spent on unsuccessfully opposing Defendants’ motion for partial summary judgment. Plaintiffs
have agreed to withdraw those hours. [Doc. 398, p. 14.]
b.

Plaintiffs’ opposition to Defendants’ motion to stay on
interlocutory appeal

Defendants challenge 17.7 hours of Rodoplous’ time spent opposing Defendants’ motion
to stay proceedings while their interlocutory, qualified immunity appeal was pending. Plaintiffs
have agreed to withdraw those hours. [Doc. 398, p. 14.]
c.

Investigation of claims related to medical staff

Defendants challenge Rodopolous’ time spent researching possible claims against
medical staff, 5/3/13 – 1.4 hours. Plaintiffs had no recovery against medical staff; they were
never even named as defendants. The 1.4 hours are disallowed.

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d.

Spoliation sanctions

Defendants challenge 31.0 hours of Rodopolous’ time spent preparing a motion for
sanctions for spoliation of evidence. Plaintiffs have agreed to withdraw those hours. [Doc. 398,
p. 14.]
e.

Trial preparation

Defendants challenge entries for Rodopolous’ time spent in trial preparation:
●

9/4/15 – 6.1 hours and 9/9/15 – 9.2 hours, for
drafting and responding to motions in limine; and

●

9/15/15 – 8.20 hours, for drafting jury instructions.

Defendants argue that these hours are unreasonable. They point out that motions in limine had
already been filed, and Rodopolous had already spent some time drafting proposed jury
instructions in 2014. Thus, according to Defendants, Plaintiffs need not have expended as much
time as requested in preparing their new filings.
The Court concludes the hours requested were reasonable. To the extent Plaintiffs’
counsel had to expend time reviewing his prior work, it was caused by Defendants’ decision to
pursue the interlocutory appeal, which required over a year to resolve. The time spent was also
reasonable because the parties’ motions in limine filed in 2015 were not substantively identical
to the ones filed more than a year earlier. Furthermore, the jury instructions Plaintiffs prepared
in 2014 were a draft; the set prepared in 2015 addressed the decision rendered in Defendants’
interlocutory appeal, incorporated Defendants’ input, and addressed issues raised at the pretrial
conference. Therefore, the hours will not be reduced.
f.

Miscellaneous witness depositions

Defendants point out that the parties took a total of 37 depositions, and argue that
Plaintiffs took five, irrelevant depositions of non-parties: Heidi Harvey, Gerald Fattig, Charles
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Brown, David Chalfant, and Thanial McFee. Defendants ask that attorney time spent taking and
attending the depositions, and preparing the witness outlines and deposition designations, should
be disallowed or reduced, by a total of 19 hours.
These five persons worked at the prison and had, or potentially had, information directly
relating to Plaintiffs’ successful claims against Defendants Lammers, Gastineua, Earls, and
Farnsworth. Plaintiffs explain that Harvey was a Corrections officer who worked in the control
center of the prison, and whose testimony helped reveal evidence that Danial may have been
banging his head against the concrete in his regular cell. Fattig was a Corrections officer who
saw Danial and Plaintiffs at the hospital after Danial was transferred there. Brown was a
Corrections officer who observed Danial in the concrete cell, during the same period covered by
the lost video footage, and Brown testified at trial. Chalfant was an investigator who conducted
and attended interviews of Defendants and witnesses as part of the internal investigation
performed by the Department of Corrections, Office of Inspector General. And McFee was a
major at the prison, who was identified in discovery as the person who knew why Danial was
transferred to the padded cell, and how internal policy was interpreted. The time spent on their
depositions was reasonable in relation to the success Plaintiffs achieved on the merits of their
claims. See Simpson, 441 F.3d at 580. The reasonableness is underscored by the fact that the
four Defendants whom the jury found against all falsified records they prepared at the institution
or made false reports in the course of the investigation of Danial’s death. Whether in hindsight
Plaintiffs took five depositions too many was occasioned in no small part by Defendants’
conduct and Plaintiffs’ need to ensure they actually had the facts.
Accordingly, the challenged 19.0 hours are allowed.

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C.

Costs and expenses
1.

Costs related to the above

In connection with their arguments for disallowance or reduction of time addressed
above, Defendants ask that related costs be disallowed. Those requests are ruled as follows:
a.

costs associated with extraction team defendants

Plaintiffs agree to withdraw $30 for service of process on Sipes. [Doc. 398, p. 9.]
The $101.15 witness fee for Finney is allowed; Finney testified at trial.
Costs relating to the stenographic depositions and video depositions of Eivins, Mowry,
Neumann, Sipes, Wagers, Finney, and Eivins, dated 11/21/2013, 11/25/2013, and 11/26/2013 are
allowed.

As discussed above, time spent preparing for and taking their depositions was

reasonable, and will be allowed. Furthermore, Plaintiffs may recover the costs of both the
written and video-record depositions. It was reasonable to believe that videotape would be
necessary at trial if any of the witnesses were unable to testify. See Rohrbough v. Hall, 2010 WL
4940954, at *2 (E.D. Mo. Nov. 30, 2010). “Additionally, it cannot be said that a videotape of a
deposition is wholly duplicative of a transcript of the same deposition because the transcript only
captures verbal communication, while the videotape captures both verbal and nonverbal
communication.” Id.
b.

costs associated with other defendants

Costs relating to the stenographic depositions and video depositions of Defendant
Jennings and Hammer, dated 11/25/2013 and 11/26/2013, are allowed. As discussed above, time
spent preparing for and taking their depositions was reasonable, and will be allowed, and the
costs of both the written and video-record depositions was reasonably incurred.

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c.

costs associated with other witnesses

Costs relating to the stenographic deposition and video deposition of Judy Cluck,
8/19/2013 – $ 494.06, and 8/21/2013 – $488.86, are not allowed. As discussed above, time spent
preparing for and taking her deposition is not allowed.
Costs relating to the stenographic depositions and video depositions of Heidi Harvey,
Gerald Fattig, Charles Brown, David Chalfant, and Thanial McFee are allowed. As discussed
above, time spent preparing for and taking their depositions is allowed.
Plaintiffs also seek to recover the cost of compelling Brown and McFee’s attendance at
trial. Brown testified at trial about Danial’s behavior in the regular cell, about reporting Danial’s
behavior up the chain of command, and about his trip to the hospital to see Danial. The Court
cannot conclude the testimony was irrelevant.

McFee, on the other hand, did not testify.

Plaintiffs compelled McFee’s attendance, notwithstanding that they called Warden Burgess to
testify about institutional policy—the same information they planned to offer through McFee.
Accordingly, the costs associated with compelling Brown’s testimony are allowed. But the costs
associated with compelling McFee’s testimony at trial, 9/14/2015 – $41.70 and 2/25/2014 –
$31.80, are disallowed.
2.

Costs for other video depositions

Defendants argue that the cost of preserving the remaining depositions by video should
not be allowed, except for the two that were used at trial, the video depositions of Drs. Bednyek
and Mitchell. It was reasonable for Plaintiffs to prepare to present depositions by videotape at
trial, in case any of the witnesses were unable to testify, and a videotaped deposition is not
wholly duplicative of a transcribed one.

The possibility that videotaped depositions could be

needed in this case was heightened by the Defendants’ immunity defense and prospect of an

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interlocutory appeal, which Defendants in fact took. Delay caused by an interlocutory appeal
increases the risk that witnesses will be unavailable to later testify at trial.
The cases cited by Defendants do not change the analysis, because they were decided
under a different fee- and cost-shifting provision, 28 U.S.C. § 1920. Section 1920 is not a
general provision allowing a party to recover all expenses associated with trial preparation and
trial. Hallmark Cards, Inc. v. Monitor Clipper Partners, LLC, 2013 WL 1155245, at *2 (W.D.
Mo. Mar. 20, 2013). Thus, courts have disallowed recovery of the cost of both written and
videotaped depositions by a party under that section. Id.; see also Am. Guarantee & Liability
Ins. Co. v. U.S. Fidelity & Guaranty Co., 2010 WL 1935998, at *2 (allowing party to recover
cost of both written and videotaped deposition would be “contrary to the plain language” of
§ 1920). Section 1988 is not so limited.
3.

Costs for expert witness, Dr. Mary Case

Defendants argue that the costs of Plaintiffs’ expert, Dr. Mary Case, should not be
allowed because Dr. Case’s testimony “merely corroborated” the testimony by video of
Dr. Mitchell concerning the cause of Danial’s “death and prognosis.” [Doc. 395, p. 29.]
Dr. Case’s testimony was offered live.

Unlike Dr. Bednyek, who testified by deposition,

Dr. Case was able to give testimony concerning not simply the likely cause but the cause of
Danial’s injury, was able to testify about the likelihood of Danial’s survival had he received
earlier treatment, and testified about what Danial was likely to have experienced after the fall.
Her testimony did not merely reiterate or corroborate other testimony, and it was important.
Those costs are allowed.
D.

Overall size of Plaintiffs’ request

Finally, Defendants argue that notwithstanding the reductions in specific fees and costs

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they seek, an additional reduction in the overall size of Plaintiffs’ fee and cost request should be
made “to bring [it] in line with the level of success achieved at trial. Plaintiffs have submitted a
bill totaling more than $376,000.00 even though they won only $311,000.00” on the
constitutional claim. [Doc. 395, p. 30.] Defendants request a reduction of the total award of “no
less than 50%.” [Id.]
Proportionality between damages and the fee award is not required, although the quantity
of damages recovered is relevant to the fee award. Loggins v. Delo, 999 F.2d 364, 369-70
(8th Cir. 1993). Here, Plaintiffs’ fee and cost request under § 1988 is slightly higher than the
award they received on the constitutional claim, but no further reduction is justified.
Regardless of whether the Plaintiffs’ success on the state-law claim is considered,
Plaintiffs were very successful on their constitutional claim. Plaintiffs obtained more than
nominal recovery for all three items of damage that they sought on the constitutional claim—
funeral and burial expenses; Danial’s physical pain, and mental and emotional suffering; and
damages owing to the nature and extent of the constitutional violation. Plaintiffs also obtained
an award of punitive damages against all four of the Defendants. Furthermore, in evaluating the
reasonableness of the hours overall, the Court notes that there were multiple Defendants. The
case involved the death of an inmate behind the closed doors of a prison facility. A video tape
containing relevant evidence was lost. Preparation and trial of the case was all the more
complicated because Defendants falsified records they prepared at the institution or made false
reports in the course of the investigation of Danial’s death. Defendants nevertheless vigorously
defended the case, which lasted almost three years from the date of filing to the date of trial, and
included Defendants’ interlocutory appeal. In short, Plaintiffs’ counsel earned the fee.
Defendants’ cited authority, Al-Birekdar v. Chrysler Group, LLC, 499 Fed. Appx. 641

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(8th Cir. 2013), does not change the analysis. In Al-Birekdar, the Eighth Circuit affirmed the
district court’s reduction of the plaintiff’s fee request by 50% where the plaintiff succeeded on
his retaliation claim, but not on claims of discrimination and for punitive damages. In contrast
here, Plaintiffs entirely succeeded on their constitutional claim against all four Defendants,
recovering actual and punitive damages.
III.

Conclusion
Plaintiffs Jimmy and Annette Letterman’s motion for award of attorney fees, costs and

expenses [Doc. 388] is granted in part and denied in part. The amount of fees awarded is
$273,930.00 and the amount of costs and other expenses awarded is $64,894.41. The final
amounts shall be included in the judgment. An Appendix reflecting the calculation is attached to
this Order.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: February 26, 2016
Jefferson City, Missouri

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APPENDIX

ATTORNEY FEES DISALLOWED:
5/3/2013

1.4

research possible claims against medical staff

6/4/2013

.60
.60
.60

stipulation of dismissal of Hammer
preparing amended complaint against Jennings
preparing amended complaint against Cluck

7/31/2013

.65

preparation for Cluck’s deposition

8/5/2013

3.0

attend Cluck’s deposition

11/7/2013 – 12/19/2103

31.0

prepare motion for spoliation sanctions

1/6/2014 – 2/5/2014

23.1

suggestions in opposition to Defendants’ motion for partial
SJ

1/15/2014

10.8

suggestions in opposition to Jennings’ motion for SJ

2/5/2014

1.4

suggestions in opposition to Jennings’ motion for SJ

2/14/2014 – 2/19/2014

1.3

witness outline and deposition designations (Cluck)

2/28/2014 – 3/2/2014

17.7

suggestions in opposition to Defendants’ motion to stay
on interlocutory appeal

6/2/2014 – 6/17/2015

12.0

Jennings’ interlocutory appeal

Total attorney fees
disallowed:

104.15 hours

PARALEGAL FEES DISALLOWED:
1/7/2014

1.7

suggestions in opposition to Jennings’ motion for SJ

1/8/2014 – 1/9/2014

1.1

suggestions in opposition to Defendants motion for partial
SJ

Total paralegal fees
disallowed:

2.8 hours

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COSTS DISALLOWED:
8/19/2013

$494.06

video deposition of Cluck

8/21/2013

$488.86

deposition of Cluck

2/25/2014

$31.80

service on McFee

9/4/2015

$41.70

service on McFee

9/14/2015

$30.00

service on Sipes

Total costs
disallowed:

$1,086.42

CALCULATION OF FEE AWARD (AFTER DEDUCTING DISALLOWED ATTORNEY
AND PARALEGAL FEES):
Attorney Rodopolous
Paralegal Tammy Reed
Attorney Wood
Attorney Miller

694.85 hours
238.0 hours
1.3 hours
1.8 hours

Total

$350 /hour
$125/hour
$375/hour
$275/hour

935.95 hours

$243,197.50
$29,750.00
$487.50
$495.00
$273,930.00

CALCULATION OF AWARD OF COSTS AND OTHER EXPENSES (AFTER DEDUCTING
DISALLOWED COSTS):
$65,981.23 (requested) - $1,086.42 (disallowed) = $64,894.81

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