Hershberger et al v. Ethicon Endo-Surgery, Inc.
Filing
289
MEMORANDUM OPINION AND ORDER directing that the Court awards the plaintiffs reasonable attorney's fees in the amount of $48,000 (120 hours x $400) and costs in the amount of $5,350.36, for a total of $53,350.36, to be paid by Ethicon Endo-Surgery to the Masters Law Firm no later than 10/28/2011. Signed by Magistrate Judge Mary E. Stanley on 10/4/2011. (cc: attys) (cbo)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
SANDRA HERSHBERGER
and DAVID MITCHELL,
her husband,
Plaintiffs,
v.
Case No. 2:10-cv-000837
ETHICON ENDO-SURGERY, INC.,
an Ohio corporation, a subsidiary of
JOHNSON & JOHNSON, a New Jersey
corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
In a Memorandum Opinion, Order and Recommendations filed
August 12, 2011 (ECF No. 264, amended September 23, 2011, ECF No.
287, “the Sanctions Order”), the Court granted the plaintiffs’
motion for sanctions (ECF No. 131), and indicated the need for
additional
information
before
sanctions to be imposed.
filed.
determining
the
extent
of
the
The additional information has been
This Order should be read with the Sanctions Order, as the
facts and
analysis
contained
in
the
Sanctions
Order
are
not
repeated here.
The Sanctions Order required defendant Ethicon Endo-Surgery
(“Ethicon”) to submit “an affidavit by a person with extensive
knowledge of the Siebel database and its metadata (not Kristi
Geier), setting forth the following information regarding searches
of the Siebel database concerning staplers, using the VOC code
‘would not staple,’ between February 6, 2009 and June 3, 2011: a.
The date of each search; b. the name and title of the person who
performed each search; and c. the results of each search.”
(ECF
No. 287, at 21.) Ethicon timely filed its response, which includes
two affidavits by persons with knowledge of the Siebel database.
(ECF No. 268.)
According to the response, the Siebel database is
not capable of producing a record of the searches which are made of
it.
Id. at 2.
Thus it became necessary to examine employees’
computers for Excel files which would contain the results of a
Siebel database query.
Id.
There were two queries, one on
December 14, 2010, by Jamie Gast for the use of Theresa Vogel, and
the other on March 8, 2011, by Ms. Vogel and Ms. Kristi Geier.
Id.
at 2-3.
The defendants state as follows with respect to the December
14, 2010 and March 8, 2011 searches:
On December 14, 2010, Jamie Gast, a member of
Ethicon’s Customer Quality group, downloaded all records
in Siebel related to all intraluminal staplers and
transported that file into Excel for Theresa Vogel’s use.
This download was not specific to CDH staplers . . . and
was not done by VOC code. Thus, although Mr. Gast did
not query the VOC code “would not staple,” the records
associated with this VOC code were included in his result
as were the records for every VOC code for every model of
intraluminal staplers.
Because the allegations in this case were that the
stapler at issue was manufactured without staples and
without a breakaway washer and as a result of
2
conversations with Ms. Geier and the Customer Quality
department, Ms. Vogel then excerpted out of this data
file CDH complaints associated with the VOC codes
“missing staples,” “anvil not returned,” “damaged
component” and “staple retention” in order to search for
complaints responsive to Plaintiffs’ Third Set of
Requests for Production of Documents. Ms. Vogel did not
query the VOC code “would not staple” and documents
associated with that code were not part of the electronic
group of records that Ms. Vogel and Ms. Geier worked from
in answering these discovery responses because the
request asked for reports which alleged that the device
failed to fire due to a lack of staples.
(ECF No. 268, at 3.)
The March 8, 2011 query was triggered as a result of a
question by an attorney with Guthrie & Thomas.
This was the first time the VOC code “would not staple”
was queried in the Siebel system in relation to this
case. The results of this query were transported into
Excel and Ms. Vogel reviewed these complaints to
determine if they contained documents that should have
been coded as “missing staples” but had in fact been
inadvertently coded as “would not staple.” Ms. Geier and
Ms. Vogel did not believe that these “would not staple”
documents were responsive to the Plaintiffs’ Third Set of
Requests for Production of Documents seeking reports
where a stapler failed to fire due to a lack of staples.
On May 25, 2011, counsel from Guthrie & Thomas had
a conference call with Ms. Geier and Ms. Vogel in regard
to responding to Plaintiffs’ Ninth and Tenth Sets of
Requests for Production of Documents (which were
different than the earlier requests) which by agreement
of the parties were due on June 3, 2011. During that
call Ms. Geier and Ms. Vogel discussed with counsel the
documents that were retrieved in the March 8, 2011 search
using the VOC code “would not staple.” As a result of
the call, Ms. Geier sent the “would not staple” documents
to counsel for production.
Id. at 3-4.
Since February 19, 2009, the defendants have had actual
3
knowledge of the plaintiffs’ allegations (based on the statements
of Ms. Hershberger’s surgeons) with respect to the stapler, that
is, the stapler was properly positioned, it was fired, the stapler
cut
the
tissue
but
no
staples
were
ejected.
Whether
the
plaintiffs’ counsel described the incident as “stapler not loaded
with staples,” (Request No. 16, First Set), or “stapler failed to
fire due to a lack of staples,” (Request No. 1, Third Set), the
allegations have remained the same throughout this litigation.
The plaintiffs served Request No. 16, First Set on August 24,
2010.
(ECF No. 7.)
Within thirty days of August 24, 2010, the
defendants should have queried the Siebel database for information
of other similar incidents, and they did not do so.
Their response
that “there are no documents,” was explained as being limited to
litigation, which the undersigned has described in the Sanctions
Order as “unreasonable in the extreme and, frankly, nonsensical.”
(ECF No. 287, at 11.)
After further review of Ms. Geier’s
testimony at the July 28, 2011 hearing, and consideration of the
defendants’ response to the Order at ECF No. 268, it appears that
no query was made of the Siebel database for Request No. 16, First
Set, even though Ms. Geier described the Siebel database as “when
someone reports an incident with one of our devices, all of the
information regarding that incident is captured in Siebel.”
No. 267, at 73.)
(ECF
In short, the Siebel database is the single
source for information of other similar incidents involving the
4
defendants’ products.
The defendants’ failure to search the
database in the fall of 2010 is inexcusable and sanctionable.
The December 14, 2010 query of the database for information
as to all intraluminal staplers was apparently prompted by the
plaintiffs’ Request No. 1, Third Set, which asked for pertinent
Product Inquiry Verification Reports.
The production of one such
Report, and the subsequent production of an additional six Reports
are described in the Sanctions Order, at page 13.
It is apparent
that little effort was made to compare the facts of the instant
litigation with the facts recited in the Siebel database entries
relating to staplers.
If care had been taken to confirm that the
VOC codes were producing data relevant to this case, at least 44
records, and perhaps many more, should have been produced.
As of
December 14, 2010, Ms. Vogel had an Excel file with all the
producible records within it.
The defendants have chosen to rely on the Siebel database
despite its limitations, including the possibilities for errors in
assigning a VOC code for a given report and in selecting VOC codes
to find other similar incidents.
the
Siebel
database,
the
failures of their system.
database and
when
they
Having made the choice to rely on
defendants
are
responsible
for
the
When they uncover deficiencies in their
learn
that
their prior
responses are
incomplete or incorrect, they have a continuing duty to supplement
their discovery responses.
Fed. R. Civ. P. 26(e)(1)(A).
5
The defendants state that “Ms. Geier and Ms. Vogel did not
believe that the ‘would not staple’ documents were responsive to
the Plaintiffs’ Third Set.”
(ECF No. 268, at 3.)
The undersigned
has reviewed more than twenty reports from the Siebel database with
the VOC code “would not staple” and they describe incidents which
are very similar identical to that of Ms. Hershberger.
Based on
what this judicial officer has reviewed, Ms. Geier’s and Ms.
Vogel’s beliefs as to responsiveness were not reasonable.
To summarize, in August, 2010, the plaintiffs served Request
No. 16, First Set; in October, 2010, the defendants failed to
search their single source for information and responded that there
were “no documents.”
If one does not look for an item, one is not
likely to find it.
In November, 2010, the plaintiffs served
Request No. 1(a), Third Set; in December, 2010, the defendants
searched the Siebel database, and downloaded an Excel file with all
the
producible
and
relevant
records.
Apparently
without
consultation with counsel or careful comparison of the records with
the plaintiffs’ allegations, the defendants produced one record,
having limited the production to a seven year period in the United
States.
After the plaintiffs’ attorney complained about the
artificial limitations and threatened to file a motion to compel,
seven
records
were
produced,
after
the
plaintiffs
took
Mr.
Gabaldon’s first deposition.
It appears that at least 44 records
should have been produced.
In February, 2011, the plaintiffs
6
served Request No. 2, Tenth Set and motion practice ensued.1
The
motion practice resulted in an order that the defendants respond to
both the plaintiffs’ Tenth Set and Ninth Set (which had not been
previously served due to a clerical error).
Meanwhile on March 8,
2011, the “would not staple” VOC code was queried, and two nonlawyers (Vogel and Geier) decided that the “would not staple” VOC
code was producing records which were not responsive.
The “would
not staple” VOC code is listed on the 21 reports which this
judicial officer reviewed and agreed are responsive.
On May 24,
2011, the plaintiffs deposed Mr. Gabaldon again; the next day the
defendants’ attorneys discussed the “would not staple” VOC code
with Ms. Geier and Ms. Vogel, resulting in the production on June
3, 2011, of more than 100 records.
To analogize the discovery phase of this litigation to a
freight train, the case began traveling down the tracks with
initial disclosures.
Upon receipt of the plaintiffs’ First Set of
discovery requests, Ms. Geier threw a switch, thereby sending the
train in the wrong direction (“no documents”).
For the following
year, the plaintiffs’ attorney pushed and pulled on the train to
get it back on the correct tracks (one document, seven documents,
44 documents).
In addition to the unnecessary loss of time and
money, if plaintiffs’ counsel had not been relentless in his
1
Due to misinformation from chambers staff, there was confusion as to
whether the plaintiffs’ Tenth Set was served within the discovery period.
7
pursuit of the evidence, the evidentiary picture would have been
substantively different.
If Carlos Gabaldon is not challenged in
his assertion that it is “impossible” for a stapler to leave the
factory without being loaded with staples, then it is much more
likely that only the surgeons will be blamed for the mishap with
Ms. Hershberger. This judicial officer does not know what happened
during the surgery, but she is persuaded that the defendants’
employees
consistently
suppression
of
made
evidence
of
decisions
other
which
similar
resulted
incidents,
in
the
and
the
defendants’ attorneys did not ask sufficient questions of their
clients.
To illustrate the difficulties faced by plaintiffs’
counsel, the Court heard testimony at the evidentiary hearing in
which it was suggested that Mr. Brinkley was at fault for not
traveling to Cincinnati, Ohio to review the Siebel database with
the defendants’ employees.
(Tr. Evid. Hrng, ECF No. 267, at 76-
77.) Twice Mr. Brinkley inquired of defense counsel about that
access, but he received no response.
Id. at 95.
In the Sanctions Order, the Court stated its intention, at a
minimum,
to
require
payment
of
the
plaintiffs’
attorney’s
reasonable fees and costs associated with the Motion for Sanctions,
the filing of discovery requests for other similar incidents after
Request No. 16, and Mr. Gabaldon’s two depositions.
at 20-21.)
(ECF No. 288,
Ethicon Endo-Surgery has stated that it “will pay the
full amount of any award for attorney’s fees and costs.”
8
(ECF No.
277, at 10.)
Having determined that the response to the plaintiffs’ Request
No. 16, First Set, was unreasonable, inexcusable and sanctionable,
the
Court
has
reviewed
the
affidavit
of
fees
and
expenses,
including the time report, filed by the plaintiffs’ attorney,
Christopher L. Brinkley, found at ECF No. 275.
The defendants
filed a response in opposition to Mr. Brinkley’s affidavit of fees
and expenses (ECF No. 277), and Mr. Brinkley has filed a reply (ECF
No. 280).
Hourly Rate
The first issue in dispute is whether Mr. Brinkley’s claimed
hourly rate of $450 is unreasonably high for an attorney-engineer
who specializes in products liability litigation, serving as lead
counsel, with sixteen years of experience.
provided his resumé, which is extensive.
This
judicial
officer
regularly
Mr. Brinkley has
(ECF No. 275, at 8-12.)
reviews
hourly
rates
of
attorneys in relation to claims for costs and fees, including
attorneys’ fees, pursuant to Rule 37 of the Federal Rules of Civil
Procedure.
Hourly rates in Charleston and Huntington vary widely
according to attorneys’ reputation, expertise, experience, success
and typical client base.
Corporate defense attorneys in this
region typically bill at lower rates than East Coast metropolitan
firms with hundreds of lawyers and higher overhead expenses.
Defense attorneys are more likely to bring more than one lawyer to
9
a hearing; the defendants had three lawyers at the hearing on
sanctions; the plaintiffs had Mr. Brinkley and a paralegal. Taking
just the hearing on sanctions as an example, Mr. Brinkley claims
$450 per hour for 4.25 hours ($1,912.50); the defense attorneys
were billing a total of $763 per hour ($3,242.75).
(See ECF No.
286.)
The Court has considered the time and labor expended by Mr.
Brinkley in his dogged persistence to obtain disclosure of other
similar
incidents,
the
questions
raised,
his
skills,
his
opportunity costs, customary fees charged, the time limits imposed
by the scheduling order, his experience, reputation and ability,
and attorneys’ fees awarded in similar cases.
In this judicial
officer’s experience, Mr. Brinkley’s claimed hourly rate of $450
exceeds any rate charged by an attorney in this District by at
least 10%.
As both an engineer and an attorney, Mr. Brinkley
possesses unusual educational credentials and expertise justifying
an hourly rate which exceeds that of most attorneys of comparable
experience.
Accordingly, the Court deems $400 per hour to be a
reasonable rate for Mr. Brinkley.
The Court acknowledges Chief
Judge Goodwin’s conclusion that $500 per hour is the high end of
the market, as reported in Jones v. Dominion Resources Services,
Inc., 601 F. Supp.2d 756, 766 (S.D. W. Va. 2009), a class action
case concerning oil and gas royalties with a settlement fund of $50
million.
Class action litigation and single-plaintiff cases are
10
sufficiently different from each other to justify $400 per hour.
Time Charges
The defendants challenge some of the activities listed in Mr.
Brinkley’s time report.
The Sanctions Order stated the Court’s
intention to award reasonable fees and costs associated with the
Motion for Sanctions, the filing of discovery requests for other
similar incidents after Request No. 16, and Mr. Gabaldon’s two
depositions.
(ECF No. 288, at 20-21.)
The Court notes that the
fees and costs are being awarded pursuant to Rule 26(g), which
affords the Court considerable discretion, and not Rule 37.
The defendants list “examples” of time charges which they
dispute; if the defendants did not list all the items which they
contest,
they
have
missed
their
opportunity.
They
did
not
specifically identify by date the time charges they challenge, thus
making it more difficult to find them.
examined
the
time
report
with
care,
While the Court has
it
will
not
make
the
defendants’ arguments for them.
The defendants dispute the following:
Date
Description
Time
1/29/11
Notices of depositions
0.5
1/31/11
Amended notices of depositions
0.5
2/10/11
Review of Gabaldon report
0.5
2/21/11
Prepare for deposition on other incidents
2.25
2/24/11 3/6/11
Four emails regarding production of other
incidents
1.0
11
3/8/11
Review of seven other incidents
1.25
2/22/11
Travel to El Paso for depositions
9.0
2/23/11
Deposition of Carlos Gabaldon
3.0
3/18/11 4/27/11
Plaintiffs’ motion to compel, ECF No. 79,
and Order granting, ECF No. 100
5/12/11
Communications re compelled discovery
0.5
6/3-7/11
Review of other similar incidents
7.5
6/17/118/12/11
Motion for Sanctions re conduct other than
other similar incidents
14.0
Extensive
but
not
itemized
The first basis for the defendants’ challenges is that most of
this work would have been done anyway.
would
have
reviewed;
been
prepared;
plaintiffs’
Gabaldon’s
counsel
would
The deposition notices
report
have
would
have
prepared
for
been
the
deposition on other similar incidents, traveled, and deposed Mr.
Gabaldon; and he would have reviewed the documents of other similar
incidents.
(ECF No. 277, at 6-8.)
The second reason given by the
defendants is that the plaintiffs should not recover their costs
relating to the motion to compel at ECF No. 79 (see footnote 1
above).
Id. at 8.
The third ground for reducing the expenses is
that the defendants argue that the time spent on the motion for
sanctions
should
be
apportioned
according
to
the
plaintiffs’
success; that is, sanctions were imposed with respect to the other
similar incidents, and not as to other conduct.
Id. at 8-9.
The
defendants complain that they should not have to pay for both trips
12
to El Paso, Texas for Mr. Gabaldon’s depositions.
The
plaintiffs
reply
that
they
were
Id. at 9-10.
complying
with
the
directions in the Sanctions Order when they prepared the affidavit,
and that the entries are consistent with the Sanctions Order. (ECF
No. 280 at 6-7.)
They explain why it was necessary to perform each
of the challenged tasks and how the defendants’ conduct impeded
their search for evidence.
Id. at 8-11.
With respect to the
defendants’ apportionment argument, the plaintiffs point out that
they always contended that the centerpiece of the motion for
sanctions was the belated and grudging disclosure of other similar
incidents after unrelenting prodding.
Id. at 11.
The plaintiffs
used the defendants’ other acts to demonstrate that the defendants
had a pattern and practice of impeding discovery.
Id.
The Court notes that Rule 26(g) does not contain language
similar
to
Rule
37(a)(5)(C)
concerning
the
apportionment
expenses according to the extent of relief awarded or denied.
of
The
only limitation on the Court’s discretion in imposing a Rule 26(g)
sanction
which
includes
an
order
to
pay
expenses,
including
attorney’s fees, caused by the violation, is that the expenses be
“reasonable.”
The primary and most egregious violation of Rule
26(g) was the response to Request No. 16, First Set.
If the
defendants had conducted an appropriate Siebel database query
within thirty days of the First Set of discovery requests, it is
doubtful that a motion for sanctions would have ever been filed.
13
Instead, due to that unjustifiable omission, the plaintiffs were
forced to file repeated additional discovery requests, to depose
Mr.
Gabaldon
twice
without
sufficient
documents
having
been
disclosed prior to either deposition, and to review critical
evidence of other similar incidents after the close of discovery.
The plaintiffs were deprived of the opportunity to form their
theory of the case early in the discovery period and to pursue that
theory vigorously. Some of the other similar incidents occurred in
Europe; the plaintiffs may have preferred to arrange for further
exploration of those incidents.
In other words, the defendants
altered the course of this litigation for a year, for no good
reason, and it is appropriate that they pay the price.
The only time charges which the Court declines to award to the
plaintiffs relate to the motion to compel at ECF No. 79.
The Order
entered in relation to the motion specified that the parties “shall
bear their own costs.”
(ECF No. 100.)
Accordingly, the Court will
subtract 14.0 hours from the time charges.
It is hereby ORDERED that the Court awards the plaintiffs
reasonable attorney’s fees in the amount of $48,000 (120 hours x
$400) and costs in the amount of $5,350.36, for a total of
$53,350.36, to be paid by Ethicon Endo-Surgery to the Masters Law
Firm no later than October 28, 2011.
14
The Clerk is directed to transmit this Order to counsel of
record.
ENTER:
October 4, 2011
15
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