James v. State of Nebraska et al

Filing 209

MEMORANDUM OPINION - A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ELAINE JAMES, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
THE STATE OF NEBRASKA;
)
NEBRASKA BOARD OF MEDICINE & )
SURGERY; NEBRASKA DEPARTMENT )
OF HEALTH AND HUMAN SERVICES, )
DIVISION OF PUBLIC HEALTH,
)
an agency in the State of
)
Nebraska,
)
)
Defendants.
)
______________________________)

8:09CV112

MEMORANDUM OPINION

This matter is before the Court on the application of
plaintiff Elaine James, M.D. (“Dr. James”) for attorney fees and
expenses (Filing No. 198, with brief and index of evidence,
Filing Nos. 200 and 199).

Defendants filed a brief in opposition

to the application (Filing No. 203, with index of evidence,
Filing No. 204), to which Dr. James replied (Filing No. 206, with
index of evidence, Filing No. 205).

In addition, Dr. James filed

an affidavit with the Court, along with a copy of the contingent
fee agreement with her attorney (Filing No. 208).

After

reviewing the application, briefs, evidence, and relevant law,
the Court will grant, in part, the requests made in Dr. James’
application.
This case stems from Dr. James’ initially unsuccessful
applications for medical licensure with the State of Nebraska

(See Filing No. 109, Memorandum and Order granting partial
summary judgment to defendants, for detailed factual history).
Dr. James set forth five claims in her complaint: (1) violation
of the Americans with Disabilities Act (“ADA”); (2) violation of
her due process rights asserted under 42 U.S.C. § 1983; (3)
violation of her equal protection rights asserted under 42 U.S.C.
§ 1983; (4) deprivation of civil rights asserted under 42 U.S.C.
§§ 1983 and 1985; and (5) defamation (Complaint, Filing No. 1).
On summary judgment, all except the ADA claim were rejected on
immunity grounds (Filing No. 109).
After a trial on the ADA claim only, the jury found in
favor of Dr. James on her claim of discrimination on the basis of
her disability against defendant Nebraska Department of Health
and Human Services, and the jury awarded Dr. James $72,727.00 in
damages (Verdict Form, Filing No. 187).

Dr. James now seeks

“reasonable attorney fees, including litigation expenses and
costs” as allowed under 42 U.S.C. § 12205 (Filing No. 198, at 2).
Specifically, Dr. James requests attorney fees in the amount of
$138,352.501 and costs in the amount of $24,647.00.2

(Id.).

1

This includes an additional $2,100.00 for the preparation
of plaintiff’s reply brief and index of evidence (Ex. 2, Filing
No. 205, at 2).
2

Dr. James changes the amount of costs to $24,627.00 in her
brief (Filing No. 200, at 1, 3) and index of evidence (Ex. 1,
Filing No. 199, at 2). In her reply brief, she revises the
number further to $24,188.15 (Filing No. 206, at 8).
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The ADA states, “In any action or administrative
proceeding commenced pursuant to this chapter, the court or
agency, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee, including litigation expenses, and
costs . . . .”

42 U.S.C. § 12205.

The parties do not dispute

that Dr. James is a “prevailing party” under 42 U.S.C. § 12205.
However, defendants claim that Dr. James’ requests are
unreasonable and that they should be substantially reduced.
Defendants object for several reasons, which will be addressed in
turn below.
I.

Dr. James Succeeded Against Only One Defendant on Only One
Claim.
The Eighth Circuit “has expressly adopted the

guidelines for attorney fees set forth by the Fifth Circuit in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974).”3

Ladies Ctr., Nebraska, Inc. v. Thone, 645

F.2d 645, 647 (8th Cir. 1981).

Yet “[t]he most useful starting

point for determining the amount of a reasonable fee is the

3

“The twelve factors are: (1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the skill
requisite to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of the
case; (5) the customary fee; (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; and (12) awards
in similar cases.” Hensley v. Eckerhart, 461 U.S. 424, 430 n.3
(1983) (citing Johnson, 488 F.2d, at 717-719).
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number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate.

This calculation provides an

objective basis on which to make an initial estimate of the value
of a lawyer’s services.”
(1983).

Hensley v. Eckerhart, 461 U.S. 424, 433

Of course, “[t]he product of reasonable hours times a

reasonable rate does not end the inquiry.

There remain other

considerations that may lead the district court to adjust the fee
upward or downward, including the important factor of the results
obtained.”

Id. at 434 (quotation omitted).
This factor is particularly crucial
where a plaintiff is deemed
“prevailing” even though he
succeeded on only some of his
claims for relief. In this
situation two questions must be
addressed. First, did the
plaintiff fail to prevail on claims
that were unrelated to the claims
on which he succeeded? Second, did
the plaintiff achieve a level of
success that makes the hours
reasonably expended a satisfactory
basis for making a fee award?
* * *
In [some civil rights] cases the
plaintiff’s claims for relief will
involve a common core of facts or
will be based on related legal
theories. Much of counsel’s time
will be devoted generally to the
litigation as a whole, making it
difficult to divide the hours
expended on a claim-by-claim basis.
Such a lawsuit cannot be viewed as
a series of discrete claims.
Instead the district court should
focus on the significance of the
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overall relief obtained by the
plaintiff in relation to the hours
reasonably expended on the
litigation.
Where a plaintiff has obtained
excellent results, his attorney
should recover a fully compensatory
fee. Normally this will encompass
all hours reasonably expended on
the litigation, and indeed in some
cases of exceptional success an
enhanced award may be justified.
In these circumstances the fee
award should not be reduced simply
because the plaintiff failed to
prevail on every contention raised
in the lawsuit. Litigants in good
faith may raise alternative legal
grounds for a desired outcome, and
the court’s rejection of or failure
to reach certain grounds is not a
sufficient reason for reducing a
fee. The result is what matters.
Id. at 434-35 (internal citation omitted).
“The district court also may consider other factors
identified in [Johnson], though it should note that many of these
factors usually are subsumed within the initial calculation of
hours reasonably expended at a reasonable hourly rate.”
434, n.9.

Id. at

“There is no precise rule or formula for making these

determinations.

The district court may attempt to identify

specific hours that should be eliminated, or it may simply reduce
the award to account for the limited success.

The court

necessarily has discretion in making this equitable judgment.”

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Id. at 436-37.

“It remains important, however, for the district

court to provide a concise but clear explanation of its reasons
for the fee award.”

Id. at 437.

In this case, on summary judgment, four of the original
five claims were rejected on immunity grounds; only the ADA claim
remained.

In addition, Dr. James received a jury verdict in her

favor against only one of the named defendants.

Defendants argue

that Dr. James’ claims were not closely related, such that she
should not be able to collect attorney fees for work that was
done for the rejected claims.
The Court finds that all of Dr. James’ claims follow
from a “common core of facts” regarding the acts of defendants.
Hensley, 461 U.S. at 435.

Dr. James’ civil rights and ADA claims

all stem from closely related issues of fact, that is, the denial
of her applications for a Nebraska medical license because of
factors associated with her disability.

The defamation claim,

too, stems from the application process, whereby minutes of
meetings of the Board of Medicine and Surgery that mentioned Dr.
James’ disability were published on the internet.

Consequently,

the Court finds that the attorney fees should not be reduced
because of the lack of success on related claims that one would
naturally expect to be raised in Dr. James’ complaint.

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II.

The Dollar Amount of Attorney Fees Requested, $138,352.50,
is Greater Than the Jury’s Verdict, $72,727.00.
In City of Riverside v. Rivera, 477 U.S. 561 (1986), a

civil rights action where an attorney fee award was made under 42
U.S.C. § 1988, the United States Supreme Court discussed at
length the propriety of an attorney fee award that is greater
than the jury verdict.

Rivera, 477 U.S. at 564-65.

“The amount

of damages a plaintiff recovers is certainly relevant to the
amount of attorney’s fees to be awarded under § 1988.
Johnson, 488 F.2d, at 718.

See

It is, however, only one of many

factors that a court should consider in calculating an award of
attorney’s fees.”

Rivera, 477 U.S. at 574.

The Court stated

emphatically, “We reject the proposition that fee awards under
§ 1988 should necessarily be proportionate to the amount of
damages a civil rights plaintiff actually recovers.”

Id.

The Court went on to explain the policy reasons for its
decision.

“As an initial matter, we reject the notion that a

civil rights action for damages constitutes nothing more than a
private tort suit [benefitting] only the individual plaintiffs
whose rights were violated.”

Id.

“Unlike most private tort

litigants, a civil rights plaintiff seeks to vindicate important
civil and constitutional rights that cannot be valued solely in
monetary terms.”

Id.

“Regardless of the form of relief he

actually obtains, a successful civil rights plaintiff often

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secures important social benefits that are not reflected in
nominal or relatively small damages awards.”

Id.

“In addition,

the damages a plaintiff recovers contributes significantly to the
deterrence of civil rights violations in the future.”

Id. at

575.
The Supreme Court discussed the difficulty that a civil
rights plaintiff would face if an attorney was limited to a
proportional fee:

“[T]he contingent fee arrangements that make

legal services available to many victims of personal injuries
would often not encourage lawyers to accept civil rights cases,
which frequently involve substantial expenditures of time and
effort but produce only small monetary recoveries.”

Id. at 577.

Indeed, “A rule of proportionality would make it difficult, if
not impossible, for individuals with meritorious civil rights
claims but relatively small potential damages to obtain redress
from the courts.

This is totally inconsistent with Congress’

purpose . . . .”

Id. at 578.

Indeed, this Court finds that Dr.

James’ “success may nonetheless be considered significant, in
light of the fact that the jury’s verdict on her core claim ‘not
only serve[d] to vindicate important personal rights as
envisioned by the statute, but also [to] further the public’s
interest in providing a fair playing field in the work world.’”
Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir.

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2000)(quoting Shrader v. OMC Aluminum Boat Grp., Inc., 128 F.3d
1218, 1222 (8th Cir. 1997).
The Court also notes that the defendants in this case
prevailed because of absolute and qualified immunity for several
of Dr. James’ claims, limiting her opportunity to otherwise argue
on the merits for the damages remedy.
[W]hile damages are theoretically
available under the statutes
covered by [§ 1988], it should be
observed that, in some cases,
immunity doctrines and special
defenses, available only to public
officials, preclude or severely
limit the damage remedy.
Consequently, awarding counsel fees
to prevailing plaintiffs in such
litigation is particularly
important and necessary if Federal
civil and constitutional rights are
to be adequately protected.
Rivera, 477 U.S. at 577 (quotation omitted).
Dr. James did not prevail on all of her claims against
all of the defendants initially named, nor did she receive
anywhere near the level of financial remuneration in the jury’s
verdict that she sought.

Defendants argue that “[i]n light of

the minimal verdict for the Plaintiff, as compared to the amount
requested, Plaintiff’s Application should be reduced” (Filing No.
203, at 3).
Dr. James counters that her award should not be reduced
because the time spent on the case was increased due to the
“aggressive litigation strategy” of defendants (Filing No. 206,
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at 6).

In addition, she states that defendants “refused to . . .

engage in serious settlement discussions” (Id., at 5).

Yet Dr.

James’ counsel’s billing records contain several references to
discussions about settlement:

November 30, 2009 - “E-mail

correspondence from Mike Rumbaugh . . . requesting a number for
settlement negotiations.

E-mail reply to Mike Rumbaugh that a

settlement number is in the works” (Ex. 1, Filing No. 199, at
50); January 6, 2010 - “E-mail correspondence from Mike Rumbaugh
requesting if we intend to consider trying to settle this case”
(Id. at 50); March 16, 2010 - “E-mail correspondence from Mike
Rumbaugh concerning settlement of the case” (Id. at 51); April
11, 2012 - “Email to Mike Rumbaugh regarding Dr. James would be
notified of offer, but doubtful settlement could be less than 6
figures” (Id. at 22).
The Court finds that Dr. James did not “achieve a level
of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.”

Hensley, 461 U.S. at

434.
Defendants complain that Dr. James’ application does
not allow for meaningful review because the entries lack
specificity, the numbers are not totaled, the exhibits are not in
chronological order, the hours and rates are unclear, and
subtotals do not correspond to the total time Dr. James is
claiming, among other things.

The Court agrees that the

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evidentiary submission is poorly organized and difficult to
analyze and that a summary sheet compiling the total attorney
fees and costs would have been welcome.
III. Contingency Fee Agreement.
“As we understand § 1988’s provision for allowing a
‘reasonable attorney’s fee,’ it contemplates reasonable
compensation, in light of all of the circumstances, for the time
and effort expended by the attorney for the prevailing plaintiff,
no more and no less.”
(1989).

Blanchard v. Bergeron, 489 U.S. 87, 93

“Should a fee agreement provide less than a reasonable

fee calculated in this manner, the defendant should nevertheless
be required to pay the higher amount.”

Id.

“Congress

implemented its purpose by broadly requiring all defendants to
pay a reasonable fee to all prevailing plaintiffs, if ordered to
do so by the court.

Thus it is that a plaintiff’s recovery will

not be reduced by what he must pay his counsel.”

Id. at 94.

At the Court’s request, Dr. James submitted a copy of a
Contingent Fee Representation Agreement (“Fee Agreement”) (Ex. 1,
Filing No. 208).

The Fee Agreement requires Dr. James to pay all

costs of the action and provides for a 33 1/3% lien on all
amounts recovered (Id., at 1).

Accordingly, the lien would

amount to one third of $72,727.00, or $24,242.33.

The Fee

Agreement makes no reference to any recovery of a statutory fee
under 42 U.S.C. § 12205.

Because the contingent fee is less than

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the statutory fee to be awarded to Dr. James, defendants will “be
required to pay the higher amount,” meaning the statutory award.
Blanchard, 489 U.S. at 93.
IV. Jenna Taylor’s Compensation Rate.
As trial commenced, Dr. James’ counsel, Julie
Jorgensen, stated that another attorney, Jenna Taylor, would be
helping Ms. Jorgensen with audio-visual equipment and would
perform other supporting roles during trial, but would not be
addressing the Court.

On that limited representation, the Court

stated that Ms. Taylor need not enter an appearance.

On that

basis, the Court will deny attorney fees to Ms. Taylor but will
allow fees based on a reasonable rate for non-attorney legal
support, which the Court finds to be $75 per hour, or $5,250.00
for 70 hours.
However, after careful review of the evidence, the
Court finds that an appropriate attorney fee, including the nonattorney support of Jenna Taylor, is $85,250.00.
V.

Dr. James’ Experts’ Costs.
Defendants claim that the $1,652.00 request in costs

for Dr. James’ expert witness, Certified Public Accountant James
Menard, is unreasonable because one of his reports was excluded
by the Court and because his hourly rate of $650 is too high.
The Court finds that the excluded report was offered in good
faith in an effort to provide updated information that was

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favorable to defendants.

In addition, while Mr. Menard’s hourly

rate is high, it is not altogether outside of the range that the
Court has seen in other cases.

The Court will make no adjustment

to the requested costs on this basis.
Defendants also object to the amount of time, thirtyfour hours, spent by medical expert Dr. Larry Widman.

Dr. Widman

reviewed Dr. James’ medical records, prepared an expert report
and disclosures, prepared for and testified at deposition, and
prepared for and testified at trial.

The Court finds that

thirty-four hours for this work is reasonable and will be
compensated as costs.
Like the defendants, however, the Court cannot
reproduce the number that Dr. James states as the total for
costs.

Dr. James claims $24,188.15 in her reply brief, but

defendants find the total to be $23,235.30.

Because Dr. James’

documentation is difficult to analyze, the Court will grant the
lower costs award calculated by defendants.

A separate order

will be entered in accordance with this memorandum opinion.
DATED this 18th day of September, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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