Elkins v. American Medical Systems, Inc.
Filing
63
MEMORANDUM OPINION AND ORDER granting 47 EXPEDITED MOTION by American Medical Systems, Inc. to Compel Deposition Testimony and Production of Documents and for Sanctions, and 61 MOTION by Marjorie Elkins for Reasonable Attorney's Fees and Costs; directing Muhammed-Zoheb Bhojani to pay American Medical Systems, Inc. the total sum of Ten Thousand Seven Hundred Fifty-Six Dollars and Twenty Cents ($10,756.20) and Plaintiffs the total sum of Eight Thousand Eight Hundred Forty-Three Dollar and Eleven Cents ($8,843.11) within forty-five (45) days of the date of this Order; and directing counsel for AMS to serve a copy of this Order on Muhammad-Zoheb Bhojani. Signed by Magistrate Judge Cheryl A. Eifert on 6/8/2016. (cc: counsel of record) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: AMERICAN MEDICAL SYSTEMS, INC.
PELVIC REPAIR SYSTEMS
PRODUCT LIABILITY LITIGATION
MDL No. 2325
-------------------------------------------------------------THIS ORDER RELATES ONLY TO CIVIL ACTIONS:
Centola v. AMS, Inc.
Elkins v. AMS, Inc.
Casias v. AMS, Inc.
2:14-cv-29705
2:14-cv-30578
2:14-cv-30580
MEMORANDUM OPINION AND ORDER
Pending in the three above-styled civil actions are the Motion of Defendant
American Medical Systems, Inc. (“AMS”) for Sanctions,1 along with an Affidavit in
Support of Reasonable Attorney’s Fees and Costs;2 and Plaintiffs’ Motion for Reasonable
Attorney’s Fees and Costs.3 Although Muhammed-Zoheb Bhojani was provided with
notice of the motions and was given ample time to respond in opposition, no response has
been forthcoming. Therefore, the motions are ripe for resolution. Having fully considered
the motions, and for the reasons set forth below, the court GRANTS both the Motion for
Sanctions of AMS and Plaintiffs’ Motion for Reasonable Attorney’s Fees and Costs as set
forth herein. Muhammed-Zoheb Bhojani is hereby ORDERED to pay American Medical
1
ECF No. 50 in Centola v. AMS; ECF No. 47 in Elkins v. AMS; ECF No. 49 in Casias v. AMS.
2
ECF No. 70 in Centola v. AMS; ECF No. 60 in Elkins v. AMS; ECF No. 69 in Casias v. AMS.
3
ECF No. 72 in Centola v. AMS; ECF No. 61 in Elkins v. AMS; ECF No. 71 in Casias v. AMS.
1
Systems, Inc. the total sum of Ten Thousand Seven Hundred Fifty-Six Dollars and Twenty
Cents ($10,756.20) and Plaintiffs the total sum of Eight Thousand Eight Hundred
Forty-Three Dollar and Eleven Cents ($8,843.11) within forty-five (45) days of the
date of this Order.
I.
Relevant Facts
This multidistrict litigation (“MDL”) involves pelvic mesh products manufactured,
marketed, and distributed by AMS. The products include surgical mesh intended to be
permanently implanted during operative procedures for the treatment of pelvic organ
prolapse and stress urinary incontinence. Plaintiffs claim, in relevant part, that the mesh
is defective, causing harm to the body and leading to complications, such as chronic pain
and scarring. As a result, some of the plaintiffs have undergone surgical procedures to
revise the implanted mesh, or to remove it altogether (“corrective surgeries”).
In the course of discovery, AMS learned that a portion of the plaintiffs had their
corrective surgeries arranged and funded through third-party funding companies.
According to AMS, these arrangements were frequently complex, usually expensive, and
occasionally unnecessary, as some of the plaintiffs receiving the funding had health
insurance to cover similar procedures. AMS was stymied in its efforts to discover the
details of the funding arrangements from the plaintiffs, who seemed to know little more
about them than AMS. Confronted with a lack of transparency regarding a key element of
damages, AMS began seeking information from nonparties about the third-party funding
of corrective surgeries. At issue were both the cost and the medical necessity of the
procedures.
On January 8, 2016, AMS served subpoenas for testimony and records on the
Records Custodian of Optimum Orthopedics & Spine and on Muhammad-Zoheb Bhojani,
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CEO and Manager of Optimum Orthopedics & Spine. The deponents were instructed to
appear on January 28, 2016 at 9:00 a.m. at a court reporter’s officer in Orlando, Florida
and to bring the requested documents with them. The subpoenas included the standard
information about the deponent’s duties in responding, the protections afforded to the
deponent, and steps to take in order to request quashal or modification of the subpoena.
On January 28, Mr. Bhojani appeared, both in his individual capacity and as the records
custodian for Optimum Orthopedics & Spine. Although he brought some records with
him, it quickly became apparent that Mr. Bhojani had not read the subpoena carefully
and had not made a conscientious effort to comply with the document requests.
The deposition commenced with Mr. Bhojani explaining that he managed
Optimum Orthopedics & Spine and was appearing in response to both subpoenas. Mr.
Bhojani answered preliminary questions, but when the line of inquiry turned to Mr.
Bhojani’s dealings with lawyers representing plaintiffs in pelvic mesh cases, Mr. Bhojani
replied: “I don’t feel comfortable answering that question without my attorney. I don’t see
why I’m being asked these questions, too be honest with you.” Ultimately, Mr. Bhojani
refused to answer any such questions, asserting his Fifth Amendment right against selfincrimination. Mr. Bhojani continued to plead the Fifth Amendment in response to any
question he did not wish to answer, regardless of whether or not the question implicated
him criminally. The deposition concluded with Mr. Bhojani sharing little substantive
information regarding the arranging, scheduling, and funding of corrective surgeries.
Accordingly, AMS filed a Motion to Compel and for Sanctions. Plaintiffs subsequently
filed their own motion seeking reimbursement of reasonable attorneys’ fees and costs
incurred in taking the useless deposition of Mr. Bhojani.
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On February 25, 2016, the undersigned granted AMS’s Motion to Compel and
entered an Order making the following findings:
1.
Mr. Bhojani was served with the subpoenas and appeared in response to
them;
2.
Mr. Bhojani did not file a motion for a protective order, or a motion to quash
or modify the subpoenas;
3.
Mr. Bhojani failed to conduct a reasonable search of company records in
order to comply with the subpoenas;
4.
Mr. Bhojani’s document production did not comply with the subpoenas;
5.
Mr. Bhojani failed to answer questions asked under Fed. R. Civ. P. 30,
asserting a Fifth Amendment privilege when such a privilege was inappropriate;
6.
Mr. Bhojani’s actions prevented the parties from obtaining reasonable
discovery.
7.
Mr. Bhojani did not comply with either subpoena.
Mr. Bhojani was ordered to appear for a second deposition to testify on his own
behalf and as the custodian of records of Optimum Orthopedics & Spine, to produce all
documents requested in the attachment to the subpoenas for testimony, and to provide
answers to all questions unless a valid privilege or protection applied. Mr. Bhojani’s
deposition was reconvened on March 17, 2016, and this time was completed without the
need for judicial intervention. Consequently, all that remains now are the motions for fees
and costs related to Mr. Bhojani’s obstructive behavior at the first deposition.
II.
Analysis
Federal Rule of Civil Procedure 30(d)(2) authorizes the Court to “impose an
appropriate sanction–including the reasonable expenses and attorney’s fees incurred by
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any party—on a person who impedes, delays, or frustrates the fair examination of the
deponent.” Fed. R. Civ. P. 30(d)(2). The term “person” includes “the deponent, any party,
or any other person involved in the deposition.” See Fed. R. Civ. P. 30(d) advisory
committee’s note (2000). Although the phrase “appropriate sanction,” is not more fully
defined in the Rule, “the imposition of discovery sanctions is generally within the sound
discretion of the trial court.” Francisco v. Verizon S., Inc., 756 F. Supp. 2d 705, 712 (E.D.
Va. 2010), aff'd, 442 F. App'x 752 (4th Cir. 2011) (citing Nat'l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); GMAC Bank
v. HTFC Corp., 248 F.R.D. 182, 185 n. 4 (E.D.Pa.2008)). When considering an award of
sanctions, the Court should bear in mind the two general purposes to be served by such
an award: “to penalize those whose conduct may be deemed to warrant such a sanction”
and “to deter those who might be tempted to such conduct in the absence of such a
deterrent.” Pain Ctr. of SE Indiana, LLC v. Origin Healthcare Sols. LLC, No. 1:13-CV00133-RLY, 2015 WL 5775455, at *1 (S.D. Ind. Sept. 30, 2015) (quoting NHL v. Metro.
Hockey Club, 427 U.S. 639 at 643).
Here, the circumstances clearly justify an award of sanctions, because Mr.
Bhojani’s acts and failures to act impeded, delayed, and frustrated his examination. To
begin, Mr. Bhojani failed to take reasonable steps in preparation of the deposition.
Although he was served with the subpoenas to testify and produce documents two weeks
before the deposition was scheduled to occur, Mr. Bhojani did not personally search for
the subpoenaed documents and made no effort to insure that a reasonable search was
conducted. (See Centola at ECF No. 72-1). While Mr. Bhojani brought some records
pursuant to the subpoenas—specifically, records pertaining to the plaintiffs—he was
unable to confirm that that his office staff had collected all of the plaintiffs’ documents.
5
As to his individual and business records, Mr. Bhojani confessed that he had made no
effort to collect them, claiming that he did not understand the plain language of the
subpoena, which required him to bring the records with him to the deposition. (Id. at 22).
Moreover, Mr. Bhojani clearly made a conscious decision not to consult with or bring his
attorney to the deposition, even though he had an attorney and knew in advance that the
subject matter of the deposition involved pelvic mesh litigation. At the deposition, Mr.
Bhojani nonetheless declined to answer basic questions about his relationship to pelvic
mesh litigants on the ground that he did not “feel comfortable” answering the questions
“without [his] attorney.” (Id. at 19). He refused to provide the name of his attorney, and
when pressed to answer questions, he pled the Fifth Amendment. Mr. Bhojani continued
to plead the Fifth Amendment in response to questions notwithstanding his admission
that answering the questions would not expose him to criminal liability. (Id. at 38). He
even refused to answer routine background questions about his education and work
history. Mr. Bhojani stonewalled, equivocated, and feigned ignorance throughout the
deposition. Consequently, after going to the time and expense of serving Mr. Bhojani with
subpoenas, preparing for the deposition, traveling to Florida, and appearing for the
deposition, counsel for Plaintiffs and AMS obtained very little useful information; thus,
requiring them to file a motion to compel, participate in a hearing, obtain an order, serve
Mr. Bhojani with a second set of subpoenas, and take the deposition all over again.
Having concluded that an award of fees and costs is appropriate in this case, the
undersigned turns to a calculation of the award. Under Rule 30(d), an “assessment of
expenses incurred in relation to motions made under this subsection (d) is made subject
to the provisions of Rule 37(a).” Fed. R. Civ. P. 30(d) advisory committee’s note (1970).
When calculating an award of reasonable fees and costs under Fed. R. Civ. P. 37(a)(5), the
6
Court first determines “a lodestar figure by multiplying the number of reasonable hours
expended times a reasonable rate.” Robinson v. Equifax Information Services, LLC, 560
F.3d 235, 243 (4th Cir. 2009) (citing Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th
Cir. 2008)). The United States Court of Appeals for the Fourth Circuit has identified
twelve factors to consider “[i]n deciding what constitutes a ‘reasonable’ number of hours
and rate,” including the following:
(1) the time and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform the legal services
rendered; (4) the attorney’s opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the attorney’s expectations
at the outset of the litigation; (7) the time limitations imposed by the client
or circumstances; (8) the amount in controversy and the results obtained;
(9) the experience, reputation and ability of the attorney; (10) the
undesirability of the case within the legal community in which the suit
arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards in similar cases.
Robinson, 560 F.3d at 243-244 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974)). In the context of a discovery motion, factors 1, 2, 3, 5, 9, and 12 are
generally most applicable to the analysis. Although Plaintiffs and AMS provided the Court
with some information relevant to some of the twelve factors, neither supplied sufficient
detail on all of the key factors; therefore, the Court will evaluate the parties’ requests for
fees and costs based upon information in the record, as well as data in other court
documents of which the Court may take judicial notice. Philips v. Pitt Cnty. Mem'l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009) (holding that the court may take judicial notice of the
content of court documents).
Beginning with a reasonable hourly rate, Plaintiffs are represented by three
attorneys, and AMS is represented by three attorneys. Evidence regarding the skill,
experience, reputation, and ability of the attorneys was not provided by the parties and is
7
not part of the record immediately before the Court; however, as they have all been
involved in the pelvic mesh litigation for some time, the undersigned is aware that Mr.
McSweeney, Mr. Lavigne, Ms. Binis, and Mr. Scott are all senior attorneys with years of
experience, and Ms. Babb and Mr. Wortherspoon are more junior in their training and
experience. All of the attorneys are litigators. Nevertheless, the particular discovery
matter at issue is not exceedingly novel or difficult; it falls within the scope of practice of
any attorney specializing in general litigation. Accordingly, a reasonable hourly rate in
this case would be one falling within the accepted market range of a general litigator
practicing within the Southern District of West Virginia. See Plyler v. Evatt, 902 F.2d 273,
277 (4th Cir. 1990). The duty to provide evidence of the prevailing hourly rate rests with
the party seeking an award of fees. Id. Neither Plaintiffs nor AMS offered evidence of the
prevailing hourly rates in the market. Despite that failure, the Court is disinclined to delay
its ruling in order to receive evidence from Plaintiffs and AMS regarding the current rates
regularly charged by litigators; particularly, as guidance is available by looking at other
fee awards granted in the Southern District of West Virginia.
In March 2016, District Judge Irene C. Berger found an hourly rate of $250 to be
reasonable in a product liability action.4 In 2015, in a civil rights action, Chief District
Judge Robert C. Chambers awarded attorneys’ fees based on hourly rates ranging from
$225 to $500, depending upon each attorney’s level of experience and specialization of
services.5 In March 2014, District Judge John T. Copenhaver, Jr. agreed that $250 per
hour was generally accepted as a reasonable rate and awarded that amount in an action
4 Wellman v. Ford Motor Company, et al., Civil Action No. 5:15-cv-03010, 2016 WL 1056594, at * 2
(S.D.W.Va. Mar. 16, 2016)
5
McGhee v. Cole, 115 F. Supp.3d 765, 775 (S.D.W.Va. 2015).
8
alleging unfair debt collection practices.6 In March 2013, District Judge Thomas E.
Johnston determined that hourly rates of $375, $175, and $160 were appropriate in a
predatory lending case.7 Similarly, in March 2011, District Judge Joseph R. Goodwin
accepted the hourly rates of $190 and $175 requested by the attorneys of the prevailing
party, based upon the affidavits of three local attorneys uninvolved in the litigation, who
commented on prevailing market rates, as well as recent awards in comparable cases.8 In
February 2011, Judge Chambers determined that an hourly rate of $225 was appropriate
in an ERISA action in view of the attorney’s limited length of practice (six years) and his
lack of experience in ERISA disputes (this was his first such case).9 In January 2011, Judge
Copenhaver approved, as reasonable, hourly rates of $350, $335, and $215 in an
environmental protection action, commenting on the specialized experience of the
attorneys and the expertise required by the nature of the case.10 In June 2010, Judge
Chambers found hourly rates of $350, $275, and $175 to be reasonable in a predatory
lending case, in part due to the specialized experience of the attorneys and in part due to
prior fee awards in similar cases involving the same attorneys.11 In March 2010,
Finney v. MIG Capital Management Inc., Civil Action No. 2:13-02778, 2014 WL 1276159, at *15
(S.D.W.Va. Mar. 7, 2014).
6
7 Koontz v. Wells Fargo N.A., Civil Action No. 2:10–cv–00864, 2013 WL 1337260, at *18 (S.D.W.Va. March
29, 2013).
Stalnaker v. Fidelity and Deposit Company of Maryland, Civil Action No. 2:10–cv–00964, 2011 WL
1113407, at *2 (S.D.W.Va. Mar. 25, 2011).
8
Frye v. Metropolitan Life Insurance Company, Civil Action No. 3:10–0107, 2011 WL 466686, at *3
(S.D.W.Va., Feb. 4, 2011).
9
West Virginia Highlands Conservancy, Inc. et al. v. Huffman, Civil Action No. 2:07–0410, 2011 WL
90163, at *4 (S.D.W.Va., Jan. 10, 2011).
10
11 Watkins v. Wells Fargo Home Mortgage, Civil Action No. 3:08–0132, 2010 WL 2486247, at *3
(S.D.W.Va., Jan 15, 2010). Judge Chambers noted that in June 2006 the Court had awarded fees to the
same lawyers based upon hourly rates of $300 and $225, and the Circuit Court of Roane County, West
Virginia had approved their requested hourly rates of $400 and $300 in October 2009.
9
Magistrate Judge R. Clarke Vandervort found an hourly rate of $225 to be reasonable in
an action brought under the United Services Employment and Reemployment Rights Act
of 1994 (“USERRA”) after considering the affidavits of two local attorneys, who stated
that the hourly rate typically charged by attorneys in this type of litigation ranged between
$200 and $300.12
In view of these awards and the type of work involved in this motion, the Court
finds that the hourly rates proposed by AMS are excessive for an award of fees.13 On the
other hand, the Court finds that the rates submitted by Plaintiffs fall within a range of
reasonable when taking into account the following additional factors: (1) the motion was
filed in the context of complex multidistrict litigation; (2) discovery has been uniquely
demanding in the MDLs; and (3) specialized knowledge of the relevant medicine and
devices is required in order to prosecute and defend the issues in the pelvic mesh
litigation. Therefore, the attorneys involved in the MDLs tend to demand and receive
higher hourly rates than most general litigators even when specific tasks are not
particularly complicated. Consequently, the undersigned finds that a reasonable hourly
rate for senior attorneys is $400 and for junior attorneys is $250.
With the reasonable hourly rates determined, the Court must now examine the
reasonableness of the number of hours claimed by the parties. In addition to requesting
fees associated with drafting and pursuing the Motion to Compel and for Sanctions, the
Mills v. East Gulf Coal Preparation Company, LLC, Civil Action No. 5:08–0260, 2010 WL 1050359, at
*6 n.3 (S.D.W.Va.). Magistrate Judge Vandervort also noted that this hourly rate was at the high end of
reasonable in the Beckley legal community.
12
13 AMS requests $701.25 per hour for senior attorneys and $280.50 for the junior attorney, while Plaintiffs
propose hourly rates of $400 for senior attorneys and $250 for the junior attorney.
10
parties seek fees incurred in conducting the depositions of Mr. Bhojani. “When reviewing
a fee petition, the Court must exclude any hours that are excessive, redundant, or
otherwise unnecessary.” Allen v. Monsanto Company, No. 2:05-0578, 2007 WL 1859046
at *2 (S.D.W.Va., June 26, 2007) (citing Hensley y v. Eckerhart, 461 U.S. 424, 434, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “Counsel for a prevailing party has a duty to exercise
‘billing judgment’ to ‘exclude from a fee request hours that are excessive, redundant or
otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude
such hours from his fee submission. . .’” Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir. 1986)
(quoting Hensley, 461 U.S. at 434)).
The Court finds that the parties are entitled to recover the fees incurred in
preparing for and taking Mr. Bhojani’s first deposition, and in preparing and participating
in the Motion to Compel and for Sanctions. However, the parties are not entitled to
reimbursement for fees associated with Mr. Bhojani’s second deposition, as the parties
would have incurred fees and expenses associated with a fair examination of Mr. Bhojani
even if he had fully cooperated from the outset. Consequently, the parties should not
expect to receive reimbursement for a voluntarily-incurred and anticipated litigation
expense.
Thus, with respect to Plaintiffs’ itemization, the undersigned finds that Plaintiffs
are entitled to reimbursement of 18 hours of Mr. McSweeney’s time, which represents the
time involved in preparing for, traveling to, and taking Mr. Bhojani’s first deposition. One
hour has been subtracted from the requested amount for the time spent by Mr.
McSweeney in reading Mr. Bhojani’s deposition transcript, as (1) review was not
necessary given that Mr. McSweeney did not take the second deposition; and (2) he likely
would have reviewed the transcript at some point in the litigation regardless of Mr.
11
Bhojani’s antics. Since the time spent by Ms. Babb and Mr. Langevin was unrelated to the
taking of the first deposition, their time is disallowed. In total, then, Plaintiffs are entitled
to attorneys’ fees in the amount of $7,200.
In regard to AMS’s fees, the undersigned finds that AMS is entitled to
reimbursement of 19 hours of Mr. Scott’s time, or $7,600.00, which represents the time
involved in preparing for, traveling to, and taking Mr. Bhojani’s first deposition,
communicating with counsel for Optimum, and participating in the drafting of the Motion
to Compel and for Sanctions. AMS is not entitled to be reimbursed for the presence of two
attorneys at the same deposition given that only one attorney was permitted to question
the witness. Duplicative time spent reviewing and revising documents has also been
excluded. Although Ms. Binis participated in various telephone calls, the length and
purpose of the calls have not been itemized. Therefore, the undersigned cannot determine
the reasonableness of the request for fees. AMS is entitled to reimbursement for Ms.
Binis’s participation in a telephonic hearing conducted by the Court on the Motion to
Compel, for an additional $120 in fees. (Centola at ECF No. 58). Finally, AMS is entitled
to reimbursement of Mr. Wotherspoon’s time incurred in reviewing materials in
anticipation of drafting the Motion to Compel, and in researching and drafting the
Motion, totaling 10.1 hours, or $2525.00. His time spent in the telephonic hearing has
been subtracted as duplicative of Ms. Binis’s appearance. In total, then, AMS is entitled
to attorneys’ fees in the amount of $10,245.00.
As for expenses, Plaintiffs have supplied an affidavit signed by counsel indicating
that they spent $1643.11 on travel expenses from Minnesota to Orlando for Mr. Bhojani’s
deposition. (Centola at ECF No. 72-1 at 2). AMS provided an affidavit signed by counsel
stating that Ms. Binis’s ticket was $1,940.20 and Mr. Scott’s ticket was $511.20. As
12
previously stated, it is not reasonable to require Mr. Bhojani to pay the expenses of two
lawyers representing the same client. Since Mr. Scott questioned Mr. Bhojani at the first
deposition, AMS is entitled to reimbursement for his airline ticket at $511. 20.
III.
Conclusion
Wherefore, for the foregoing reasons, Muhammed-Zoheb Bhojani is hereby
ORDERED to pay American Medical Systems, Inc. the total sum of Ten Thousand Seven
Hundred Fifty-Six Dollars and Twenty Cents ($10,756.20) and Plaintiffs the total sum
of Eight Thousand Eight Hundred Forty-Three Dollar and Eleven Cents ($8,843.11)
within forty-five (45) days of the date of this Order.
Counsel for AMS is ORDERED to serve a copy of this Order on MuhammadZoheb Bhojani.
The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: June 8, 2016
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