Jackson et al v. St. Mary's Medical Center, Inc.

Filing 261

MEMORANDUM OPINION AND ORDER granting the Plaintiffs' 250 AMENDED PETITION to Approve Infant Settlement, but awarding a contingency fee at 33.3%, instead of the requested 40%, as more fully set forth herein; and dismissing with prejudice this civil action against Defendant St. Marys Medical Center, Inc. Signed by Judge Robert C. Chambers on 7/13/2016. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

TANISE JACKSON, individually and
as the Mother and Next Friend of
M.M., an infant,
Plaintiffs,
v.

CIVIL ACTION NO. 3:14-15086

UNITED STATES OF AMERICA and
ST. MARY’S MEDICAL CENTER, INC.,
a West Virginia Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
On May 9, 2016, a hearing was held on Plaintiff Tanise Jackson’s Amended Petition to
Approve Infant Settlement, ECF No. 250. Plaintiff Jackson brings this action, individually and on
behalf of her infant son (the “minor plaintiff” or “M.M.”) (collectively “Plaintiffs”), against the
United States and St. Mary’s Medical Center, Inc. (“St. Mary’s”) (collectively “Defendants”) for
claims arising from serious, life-long injuries sustained by the minor plaintiff during his birth at
St. Mary’s, a federally-qualified health center. After nearly two years of litigation, the Parties have
settled Plaintiffs’ claims, and now they ask the Court to approve those settlements pertaining to
the minor plaintiff. At the settlement hearing, the Court approved all aspects of the proposed
settlements, except the attorney’s fees requested for the settlement with St. Mary’s. This Opinion
and Order considers the issue of what constitutes a reasonable attorney’s fee for the minor
plaintiff’s settlement with St. Mary’s. For the reasons stated on the record and in this Opinion and
Order, the Court GRANTS the Amended Petition to Approve Infant Settlement, but for attorney’s

fees on the settlement with St. Mary’s, AWARDS a contingency fee at 33.3%, instead of the
requested 40%.
I.

Background

A. Facts
On December 9, 2012, M.M. was born at St. Mary’s while under the care of its physicians
and nursing staff. Plaintiff Jackson is the biological mother of M.M; his biological father is not
part of M.M.’s life. While Plaintiff Jackson awaited M.M.’s birth, she experienced labor
difficulties caused by a drug administered to her called Picotin. In this suit, Plaintiff Jackson
contends that nurses and doctors on St. Mary’s staff should have noticed these difficulties by
reading an electronic fetal monitor sooner than they did, and their alleged failure to notice these
difficulties earlier constituted medical malpractice.
As a result of St. Mary’s staff’s alleged oversight, Plaintiff Jackson’s uterus ruptured, and
M.M. was deprived of oxygen and nutrients until he was later delivered through caesarian section.
M.M.’s late delivery caused the injuries at the center of this dispute, namely hypoxic-ischemic
encephalopathy, brain injury, cerebral palsy, cortical blindness, seizures, and spastic quadriplegia.
M.M. will live with these injuries and be fed through a tracheal tube for the rest of his life. Experts
say M.M. will live to be at least fifty years old, and he will need substantial medical care and
equipment to survive to that age.1
M.M.’s medical insurance from birth to present-day has been provided by Medicaid.
Medicaid paid for M.M.’s medical expenses in West Virginia, and for his care in Michigan, where
Plaintiff Jackson moved the family after M.M.’s birth. The Michigan Department of Health and

Plaintiff Jackson also suffered injuries due to M.M.’s improper delivery. Her uterus was
completely ruptured, which along with M.M.’s birth injury, caused Plaintiff Jackson pain,
suffering, and mental anguish.
1

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Human Services (“Michigan DHHS”) and West Virginia’s Medicaid program (“First Recovery
for Coventry”) have both placed liens on any claim M.M. has based on his birth injuries; these
liens have been negotiated down to a total of $263,305.60. M.M. must be able to retain his
Medicaid insurance benefits in order for Plaintiff Jackson to be able to afford treating M.M.’s lifelong medical needs.
Less than two weeks after giving birth, Plaintiff Jackson sought counsel to represent her in
an action based on M.M.’s birth injuries. On December 19, 2012, ten days after delivering M.M.,
Plaintiff Jackson retained Beam & Raymond and Geoffrey N. Fieger to represent her and M.M. in
this lawsuit on a 40% contingency fee basis.
B. Procedural History
On April 21, 2014, Plaintiff Jackson brought the instant action on her and M.M.’s behalf
by filing a aomplaint in this Court against St. Mary’s and the United States.2 Both Defendants
denied all liability for any injuries Plaintiff Jackson and M.M. sustained during M.M.’s birth. To
prosecute this hotly contested litigation, several other firms joined Beam & Raymond and Fieger
in representing Plaintiffs. In total, four firms combined together to form Plaintiffs’ Counsel, some
specializing in the substance of neonatal malpractice law and others specializing in bringing such
cases to trial.3 Plaintiff Jackson was aware that these other firms joined the fold in representing
her and her son.

As a federally-qualified health center, St. Mary’s operates under federal regulations that
compensate St. Mary’s for its compliance with federal rules and policies. The federal nature of St.
Mary’s led to the United States’ alleged liability for any negligent care administered by staff at St.
Mary’s.
3
Some of the attorneys composing Plaintiffs’ Counsel possess special expertise in neonatal
malpractice law and obstetrics that is discussed more fully in Part III.
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After discovery commenced, both Defendants hired experts in obstetrics and gynecology,
labor and delivery, maternal fetal medicine, causation, life-expectancy, and economics. St. Mary’s
also retained expert opinion on nursing standards of care. Numerous expert depositions took place
all across the country. The information from these depositions was gathered and used to prepare
for trial, both of which took substantial time and effort on the part of Plaintiffs’ Counsel.
The Parties also engaged in mediation, which led to several weeks of back-and-forth
settlement offers with Defendants and their insurers. In early 2016, the Parties came to a proposed
settlement of all claims against Defendants. Because the settlements involve a minor, the Parties
petitioned the Court to approve settlements of the minor plaintiff’s claims. The Court appointed a
Guardian Ad Litem (“GAL”) pursuant to Federal Rule of Civil Procedure 17(c), to protect the
interests of the minor plaintiff whose mother is suing on his behalf as next of friend. 4 Fed. R. Civ.
P. 17(c)(2) (“A minor or an incompetent person who does not have a duly appointed representative
may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—
or issue another appropriate order—to protect a minor or incompetent person who is unrepresented
in an action.”).
C. Proposed Settlement, Petitions to Approve, Hearing, and Subsequent Developments
According to the original Petition to Approve Infant Settlement, the United States has
agreed to an $8.5 million settlement, and St. Mary’s agreed to a confidential settlement amount
that is also quite substantial. The Parties proposed structuring the settlements as follows: (1) an
irrevocable, reversionary inter vivos grantor medical care trust for the benefit of M.M. would be

4

Initially, the Court appointed a GAL who also serves in Michigan as conservator over M.M.’s
estate. But prior to the settlement hearing, the conservator notified the Court that he could not
attend the hearing in person due to a medical issue. For this reason, the conservator was relieved
from his GAL duties, and a local attorney was appointed as M.M.’s GAL.
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created and purchased using $4.25 million from the United States’ settlement, (2) an irrevocable
special needs trust for the benefit of M.M., in accordance with 42 U.S.C. § 1396p(d)(4)(A),5 would
be created and funded with $2,012,848.43 from the gross settlement proceeds; (3) three annuities
for the benefit of M.M would be purchased using gross settlement proceeds;6 and (4) Plaintiff
Jackson’s claims will be settled for $250,000 out of the total settlement proceeds. The balance of
the settlement fund will be used to pay certain expenses, and what is left after expenses would be
placed into the special needs trust. The expenses incurred include: two medical liens resulting from
medical care for M.M.’s birth injuries that amount to $263,305.60; litigation expenses incurred by
Plaintiffs’ Counsel totaling $187,345.97; fees for the Michigan court-appointed conservator of
M.M.’s estate amounting to $12,000; GAL fees at $4,005; legal fees for researching and creating
the special needs trust that total $6,100—with $4,500 of that cost of settlement to be paid by the
United States; and attorney’s fees. For attorney’s fees, Plaintiffs’ Counsel requested contingency
fees at 25% of the United States’ settlement,7 which totals $2.125 million, and 40% of St. Mary’s
settlement. Plaintiffs’ Counsel also proposed that it retain $100,000 for ninety days to pay any
unexpected expenses billed after dispensing the settlement proceeds. After ninety days, Plaintiffs’
Counsel would pay back any remaining principal plus interest accrued over the ninety-day period.
The original Petition to Approve Infant Settlement was inadequate and required revision
because it lacked sufficient information to enable proper review of the proposed settlement.

5

Under § 1396p(d)(4)(A), placing the settlement proceeds into a special needs trust for the benefit
of the minor plaintiff, instead of having the minor plaintiff receive the funds directly, permits the
minor plaintiff to retain his eligibility for Medicaid health insurance.
6
The total cost of these annuities has been omitted from this Opinion and Order in an effort to
keep the amount of St. Mary’s settlement confidential, but the Court is aware of the total cost of
these annuities.
7
Plaintiffs’ Counsel requested a 25% contingency fee on the United States’ settlement because
they understood the FTCA places a limit on the attorney’s fees recoverable on Plaintiffs’ claims
against the United States.
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Specifically, the original Petition failed to justify under Fourth Circuit precedent the requested
attorney’s fees, an analysis which requires applying to the instant case twelve factors from Johnson
v. Georgia Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir. 1974). See In re Abrams & Abrams,
P.A., 605 F.3d 238, 243 (4th Cir. 2010) (explaining “[d]istrict courts should look at the twelve
factors first set forth in Johnson” when reviewing attorney’s fees on claims involving minors). But
the Court afforded Plaintiffs’ Counsel a second chance and ordered them to file an amended
petition prior to an already-scheduled hearing on the proposed settlement. The Court explicitly
instructed Plaintiffs’ Counsel to include in the amended petition an analysis of the Johnson factors,
to attach supporting materials showing the time and labor expended by Plaintiffs’ Counsel, to
attach documentary support for the expenses allegedly incurred by Plaintiffs’ Counsel, and to
attach the written contingency fee agreement signed by Plaintiff Jackson.8
A hearing on the proposed settlement of the minor plaintiff’s claims was held on May 9,
2016, with all Parties and the GAL present. During the settlement hearing, Plaintiff Jackson
testified that she believed the settlement with Defendants is fair and reasonable for her and her
son. She also stated that she was satisfied with Plaintiffs’ Counsel’s representation, and that
Plaintiffs’ Counsel had done everything she asked them to do in the course of the representation.
Plaintiff Jackson also understands that this Court’s approving the proposed settlement with
Defendants will extinguish any claims she and her son hold against Defendants arising out of the
minor plaintiff’s birth.

After Plaintiffs’ Counsel failed to provide a signed, written fee agreement with the original
Petition to Approve Infant Settlement, the Court ordered Plaintiffs’ Counsel to provide such with
the Amended Petition. Plaintiffs’ Counsel complied, and the fee agreement signed by Plaintiff
Jackson shows she agreed to a 40% contingency fee on any award to her and the minor plaintiff.
Additionally, the 40% contingency fee was established by Plaintiff Jackson’s testimony at the
settlement hearing.
8

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The GAL prepared a report prior to the hearing and testified at the hearing about the
fairness of the proposed settlement. Before the settlement hearing, the GAL met with Plaintiff
Jackson and Plaintiffs’ Counsel. Although the GAL could not review every document filed in this
case, he reviewed those he deemed most important, including the pleadings, briefing on motions
for summary judgment, the Amended Petition to Approve Infant Settlement, a report prepared by
the conservator of M.M.’s estate, the settlement document prepared by the Parties, and the
following documents attached to the settlement document as support: expert opinions and plans
prepared for M.M.’s life expectancy, life care, and medical management. The GAL’s report found,
among other things: 25% is the customary contingency fee for infant summary proceedings of this
complexity; the FTCA caps attorney’s fees on the settlement with the United States at 25%, which
is a fair and reasonable attorney’s fee given the complexity of this case; as for the settlement with
St. Mary’s, Plaintiff Jackson agreed to a 40% contingency fee, which despite being above the
customary 25% fee, the GAL found to be fair and reasonable given the risks Plaintiffs’ Counsel
shouldered by taking this case, Plaintiffs’ Counsel’s experience, and the case’s complexity. The
GAL Report also found the remaining proposed expenses—medical liens, medical care trust,
special needs trust, three specified annuities, litigation expenses, GAL fees, legal fees for
consulting and creating trusts, and Plaintiff Jackson’s settlement award—were fair and reasonable
to the minor plaintiff. Lastly, Plaintiffs’ Counsel’s proposal about retaining $100,000 of the
settlement proceeds for ninety days is a fair and reasonable method of paying any outstanding,
unforeseen expenses, according to the GAL Report.
At the hearing, the GAL reiterated that he believes the settlement is in M.M.’s best
interests, even if the Court awarded a 40% contingency fee instead of the lower fee his report found

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customary. A fee higher than 25% might be warranted, the GAL opined, based on the challenges
presented by this case, as well as the skill and knowledge of Plaintiffs’ Counsel.
At the settlement hearing, the Court found the total settlement amount for the minor
plaintiff’s claims is fair and reasonable. The GAL and all parties agreed that the proposed $8.5
million settlement with the Government, and the proposed settlement with St. Mary’s, will amply
provide for the minor plaintiff’s medical and personal needs well past his life-expectancy.
Furthermore, issues of liability and damages were hotly contested by both Defendants. The
evidence in Defendants’ favor reveals uncertainty about both Defendants’ liability for the minor’s
birth injuries. Although a jury could have awarded more than the settlement amounts obtained, it
also could have awarded less or nothing at all. Accordingly, the Court found that the total of these
settlement amounts was a fair and reasonable compromise of the minor plaintiff’s claims against
both Defendants.
The Court also found the settlement’s structure—as presented by the parties in the
Amended Petition and at the settlement hearing—is fair and reasonable. The Court approved using
principal settlement proceeds to purchase a reversionary medical needs trust, the special needs
trust, and the three proposed annuities. Together, these purchases will guarantee that the minor
plaintiff has access to living expenses and adequate medical care for the rest of his life. The medical
needs trust will pay the minor plaintiff’s medical expenses at least up to his expected life-span; the
annuities will amply provide for M.M.’s living expenses; and the special needs trust will guarantee
his medical care should he live past the life expectancies projected by experts hired by both parties.
As for proposed payments from the gross settlement fund, the Court approved each of these
as fair and reasonable, except for part of the requested attorney’s fees. More specifically, the Court
approved paying the two reduced medical liens, as these expenses were incurred in treating the

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minor plaintiff’s birth injuries. Plaintiff Jackson’s portion of the settlement proceeds is fair and
reasonable to the minor plaintiff. Litigation expenses incurred by Plaintiffs’ Counsel in the amount
of $187,345.97 were also approved. Fees for the conservator of M.M.’s estate were approved
because the Parties stated his services billed for were used by Plaintiffs’ Counsel in prosecuting
this litigation; accordingly, this $12,000 fee will be paid for in equal proportions by St. Mary’s and
Plaintiffs’ Counsel. The GAL’s fees, which amounted to $4,005, were also approved, to be paid
by St. Mary’s. Plaintiffs’ Counsel’s request to retain $100,000 of settlement proceeds for ninety
days in order to pay any unexpected expenses that may appear in that time was also approved,
provided that the conservator must approve paying any such expense before disbursement of
settlement proceeds, and that after the ninety-day period elapses, any remaining principal plus
interest shall be repaid by Plaintiffs’ Counsel into the special needs trust.
Regarding the requested attorney’s fees, the Court made several findings before concluding
the settlement hearing. First, the Court found that the FTCA’s 25% cap on contingency fees applied
to the settlement with the United States, and that a 25% contingency fee on the United States’
settlement would be fair and reasonable to the minor plaintiff. Considering the settlement with St.
Mary’s, the Court reviewed the Amended Petition and found it still lacked adequate discussion of
the Johnson factors. The Court’s preliminary Johnson analysis led it to conclude that although a
40% contingency fee is not uncommon, a 40% fee on the settlement with St. Mary’s would be
excessive due to that settlement’s amount. Instead, a 33.3% contingency fee on the St. Mary’s
settlement would be a fair and reasonable fee. Notwithstanding this preliminary conclusion,
Plaintiffs’ Counsel was given a third shot at filing a brief with an adequate Johnson explication
showing how a 40% fee would be fair and reasonable.9 Plaintiffs’ Counsel attempted to do so by

9

The first shot being the Petition to Approve Infant Settlement, the second being the Amended
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filing its Statement in Support of Attorney’s Fees, ECF No. 255, which the Court considers in this
Opinion and Order.10
Having introduced the relevant background for deciding Plaintiff Jackson’s Amended
Petition to Approve Infant Settlement, Part II will explain the legal standard for reviewing
settlements of minors’ claims, and Part III will discuss the only remaining issue in approving this
settlement—attorney’s fees on the minor’s settlement with St. Mary’s.
II.

Legal Standard

Where a proposed settlement involves a minor, the district court has a “duty to protect the
minor’s interests,” because minors may be “especially vulnerable to manipulation” and “unable to
protect themselves.” Abrams, 605 F.3d at 243. “[I]nvestigation and examination of a proposed
minor settlement includes a review not only of the total settlement amount, but also of the
disposition of the settlement proceeds, including requested payments to others, such as attorneys
or medical providers.” Gorham v. Amusements of Rochester, Inc., No. 14–386, 2015 WL 2454261,
at *3 (M.D.N.C. May 22, 2015). With regard to attorney’s fees on a minor’s claim, district courts
do not have carte blanche to approve or deny the requested fee, and instead, must scrutinize the
fee for reasonableness by applying twelve factors from Johnson v. Georgia Highway Exp., Inc.,
488 F.2d 714 (5th Cir. 1974) to evidence before the Court. Abrams, 605 F.3d at 243–44.
Even where a parent on behalf of a minor-client has agreed to a fee before the
representation, the court must review the agreed upon fee for reasonableness. See Abrams, 605
F.3d at 240; Jenkins v. McCoy, 882 F. Supp. 549, 555 (S.D.W. Va. 1995); Gorham, 2015 WL

Petition, and the third shot is the Statement in Support of Attorney’s Fees.
10
After the settlement hearing, Plaintiff Jackson contacted the Court to inquire about the status of
settlement because, according to her, attorneys composing Plaintiffs’ Counsel would not speak
directly to her. Refraining from advising her directly, the Court directed Plaintiffs’ Counsel to
respond to Plaintiff Jackson’s inquiries.
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2454261, at *3; see also Blanchard v. Bergeron, 489 U.S. 87, 92 (1989); Hoffert v. Gen. Motors
Corp., 656 F.2d 161, 164 (5th Cir. 1981). An agreed upon fee is but a single factor in assessing
the reasonableness of requested attorney’s fees and is not dispositive in calculating a reasonable
fee. See Blanchard, 489 U.S. at 93 (discussing Johnson factors in context of fees requested under
Civil Rights Attorney’s Fees Act). Not all fee agreements will be reasonable. A certain fee for
representing an adult client who is fully competent may not be reasonable in a case where the client
is an incapacitated minor.
Applying the Johnson factors to the unique circumstances in each case will determine
whether a certain fee is reasonable or not. The Fourth Circuit has stated the Johnson factors as
follows:
(1) the time and labor required in the case, (2) the novelty and
difficulty of the questions presented, (3) the skill required to perform
the necessary legal services, (4) the preclusion of other employment
by the lawyer due to acceptance of the case, (5) the customary fee
for similar work, (6) the contingency of a fee, (7) the time pressures
imposed in the case, (8) the award involved and the results obtained,
(9) the experience, reputation, and ability of the lawyer, (10) the
undesirability of the case, (11) the nature and length of the
professional relationship between the lawyer and the client, and (12)
the fee awards made in similar cases.
Abrams, 605 F.3d at 244.
III.

Discussion

In the Amended Petition, Plaintiff Jackson asks the Court to approve the settlement that
Plaintiffs’ Counsel negotiated on the minor plaintiff’s behalf with the United States and St. Mary’s.
Having resolved at the settlement hearing all other issues posed by the Amended Petition, the
remaining issue for the Court to analyze is the reasonableness of the attorney’s fees requested on
the minor’s settlement with St. Mary’s. This final task requires applying Johnson’s twelve factors

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to evidence adduced in this case and determining whether a 40% contingency fee on the St. Mary’s
settlement is reasonable, and if 40% is excessive, setting a reasonable fee.11
1. Time and labor. Judging from the time it took to litigate this case, the extent of discovery
completed, documents filed, and negotiations conducted, Plaintiffs’ Counsel devoted substantial
time and resources to secure this settlement. This case took a little over two years to prosecute.
Although it stopped short of trial—a time and resource drain—discovery was completed.
Discovery required reviewing voluminous, plentiful medical records and conducting depositions
of experts on medical standards of care and life expectancy. According to the Amended Petition
and Attorney’s Fees Statement, over 5,000 pages of medical records were reviewed by Plaintiffs’
Counsel. Plaintiffs’ Counsel has also provided time logs documenting the total time they expended
on this case, which is very helpful for this Court’s review, see Gorham, 2015 WL 2454261, at *5
(noting attorneys failed to submit documentation supporting the requested contingency fee and
awarding fee lower than requested). The time logs show Plaintiffs’ Counsel spent over 3,000 hours
on this case, not including the more than 1,300 hours put in by support staff. The time spent and
total number of documents reviewed are both substantial. See Williams, 2015 WL 127862, at *7
(noting attorneys’ documentation showed they completed 3,800 hours of work, exchanged over
7,600 e-mails, reviewed over 3,000 documents, called each other late at night, travelled

One of Plaintiffs’ Counsel’s justifications for awarding a 40% contingency fee must be rejected
right out of the gate because following its rationale would violate Congressional policy. Plaintiffs’
Counsel notes Plaintiff Jackson agreed to a 40% contingency fee on all claims, but the FTCA caps
attorney’s fees on claims against the United States at 25%. Therefore, awarding a 40% fee on the
settlement with St. Mary’s, according to Plaintiffs’ Counsel, is justified because it would bring the
total combined contingency fee closer to 33.3%, which the Court determined as a preliminary
matter is a reasonable fee in this case. This reason for granting a 40% contingency fee must be
categorically rejected. Congress has made a policy decision that 25% is an appropriate attorney’s
fee in FTCA cases. The Court cannot frustrate federal policy by granting attorney’s fees on one
settlement award to offset a statutory limit on attorney’s fees set forth in the FTCA.
11

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internationally, conducted a mock trial, and set aside holiday and vacation time to prosecute the
plaintiff’s medical malpractice claim).
Although Plaintiffs’ Counsel committed an amount of time and labor that was substantial,
the time and labor put into this case was not far above average in prosecuting similar medical
malpractice cases. Medical malpractice cases like this require hiring multiple experts to prove
matters such as the standard of care and life expectancy. Furthermore, while the Court commends
Plaintiffs’ Counsel on such a successful settlement, this is not a case where Plaintiffs’ Counsel had
to go to trial to achieve an award that approaches the maximum value of the case. And although
the time logs show a substantial amount of time was spent prosecuting this case, having four
different law firms represent Plaintiffs undoubtedly created some level of redundancy in lawyer
time spent on this case, and this redundant time should be, but cannot be, excluded from
consideration under the time and labor factor. As such, the time and labor factor weighs in favor
of awarding the average contingency fee for cases of this type, which is discussed under the
Johnson factor considering fee awards in similar cases.
2. Novelty and difficulty of the questions presented. “Cases of first impression generally
require more time and effort on the attorney's part.” Johnson, 488 F.2d at 718. To be clear though,
this factor considers the novelty or complexity of issues of law, not the amount of time put into a
case by attorneys, which is the subject of the previous factor, or the expertise required to litigate
in a certain field of law, which is considered in the experience factor.
The claims in this case—premised on the minor plaintiff’s injury during birth—presented
no novel question of law. This case did involve questions more difficult than typical medical
malpractice liability and damages recoverable, but not more difficult than questions in this sort of
case, one alleging neonatal malpractice. Neonatal malpractice, a subfield within medical

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malpractice, presents more factual difficulties than a run-of-the-mill medical malpractice case.
Plaintiffs’ Counsel does not argue that any part of this case posed a particularly difficult question
of fact or law within the subfield of neonatal malpractice. The general difficulty of litigating a
neonatal malpractice case is accounted for under the Johnson factor regarding Plaintiffs’ Counsel’s
experience and specialty. The Court must be careful in applying the Johnson factors not to conflate
the factors by inappropriately double-counting some facts.
One part of this case does present legal questions more difficult than a typical medical
malpractice case. The United States was a defendant pursuant to the FTCA, which raises threshold
issues of sovereign immunity and FTCA liability, as opposed to simpler issues under state law of
malpractice liability for non-governmental entities. As such, the novel or difficult question of law
factor weighs slightly in favor of awarding a higher than average fee.
3. Skill required. Under the skill factor, courts consider counsel’s work product, preparation,
and general ability displayed to the court. Johnson, 488 F.2d at 718. Plaintiffs’ Counsel notes this
case required lawyers experienced in neonatal malpractice, a medical malpractice specialty. While
it is true that lawyers handling neonatal malpractice cases must understand the science behind
birth, this consideration is more appropriate for the experience factor discussed below.
Plaintiffs’ Counsel’s practice before this Court has been limited to this proceeding, and the
little bit revealed about their ability and skill was mixed. While Plaintiffs’ Counsel has
demonstrated expertise in the subject matter underlying this dispute—expertise which led to these
ample settlements, Plaintiffs’ Counsel’s troubling instance of client miscommunication
undermined confidence in their ability and skills as lawyers.
Additionally, Plaintiffs’ Counsel’s attempts to support their requested attorney’s fees have
been insubstantial. It took three rounds of briefing on the issue of attorney’s fees for Plaintiffs’

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Counsel to offer an analysis of the Johnson factors that considered case law, which the Court has
requested since round one. In the second round, Plaintiffs’ Counsel failed to produce the
contingency fee agreement as ordered by the Court. In the third round, Plaintiffs’ Counsel
produced an Attorney’s Fees Statement that included some legal analysis, affidavits, and time logs,
but the Statement’s legal analysis still improperly conflated Johnson’s factors in a way that could
have been avoided by researching cases applying those factors. In sum, what little experience the
Court had dealing with Plaintiffs’ Counsel was not impressive.
Considering Plaintiffs’ Counsel’s work product, preparation, and ability displayed to this
Court, including a troubling instance of client miscommunication and three rounds of briefing on
the attorney’s fees issue, Plaintiffs’ Counsel’s skills were at best commensurate with other
attorneys prosecuting medical malpractice cases before this Court. This was not a case that
required skill in handling any special matters, such as media coverage or interplay between
criminal and civil matters. See Gorham, 2015 WL 2454261, at *11. (involving both media and
criminal charges). Considering all this, the skill factor weighs in favor of awarding a fee
proportionate to average work product, preparation, and ability—in other words, awarding a fee at
a customary contingency rate.
4. Preclusion of other employment. Courts are justified in awarding higher fees to attorneys
who demonstrate they sacrificed other lucrative cases to take on the instant representation, and to
solo practitioners, who presumably must forgo other cases. See Williams, 2015 WL 127862, at *9.
This factor should not be conflated with the time and labor factor by considering the time demands
of the instant case.
Here, the only information about the instant matter precluding Plaintiffs’ Counsel from
taking other work is found in the Amended Petition, which represents that this case’s complexity

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and cost limited the number of other cases an attorney could take in a given year. But every case
an attorney undertakes fills a spot on the attorney’s workload that could have been filled by another
case. To have this factor weigh in its favor, a firm must demonstrate preclusion of other
employment, not just allege it. And firms may demonstrate preclusion of other work by showing
the instant matter consisted of a significant proportion of the firm’s total work during the time
period of the representation. By providing only sweeping statements about the amount of time this
case required, Plaintiffs’ Counsel has not demonstrated the instant representation precluded other
work. Furthermore, Plaintiffs’ Counsel is composed of attorneys at four different firms, none of
whom are solo practitioners. A case that does not foreclose many or all other employment
opportunities, as this one appears to be, merits awarding a customary fee or one close to those
awarded in similar cases.
5. Customary fee for similar work. Under the customary fee factor, a court looks to the
“customary fee for similar work in the community.” Johnson, 488 F.2d at 718. In this case, the
GAL found a customary fee for infant summary proceedings is 25%. Case research suggests a
33.3% contingency fee is customary in the Fourth Circuit for medical malpractice cases involving
minors or incompetent persons. See, e.g., Williams v. Old HB, Inc., No. 13–00464, 2015 WL
127862, at *6 (W.D. Va. Jan. 8, 2015); Gorham, 2015 WL 2454261, at *12. The Amended Petition
asserts Plaintiffs’ Counsel’s customary fee is 40%. It may be true that Plaintiffs’ Counsel charges
40% customarily, but that has no bearing on this factor. The Amended Petition also states, without
support, that lawyers in West Virginia and across the country sometimes charge 45% for medical
malpractice cases. The Statement in Support of Attorney’s Fees includes affidavits from three
attorneys, all well-experienced and practicing in West Virginia, who claim that a 40% contingency
fee is now the norm in medical malpractice cases. One of these attorneys claims he sometimes

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charges up to 45%, depending on the complexities of the case. Even if attorneys in West Virginia
and across the country sometimes charge 45%, this does not mean that 45% is a customary fee.
Relying on the GAL report, case research, and affidavits submitted by Plaintiffs’ Counsel, the
customary fee for this sort of case lies somewhere between 25% and 40%. Taking the average of
these findings, the customary fee factor weighs in favor of dipping below a 40% contingency fee
to somewhere near 33.3%.
6. Contingency of fee. Under the contingency of fee factor, courts consider counsel’s
expectations at the outset of litigation regarding the fee rate and risks faced by counsel in
undertaking the representation. Johnson, 488 F.2d at 718; Williams, 2015 WL 127862, at *6.
Courts should also factor into their analysis the important role that contingency fees play in
providing counsel to clients who are impoverished. Abrams, 605 F.3d at 245–46.
In this case, Plaintiff Jackson agreed, on her behalf and her son’s, to pay Plaintiffs’ Counsel
40% on any proceeds from Plaintiffs’ claims. No doubt, the contingency fee agreement in this case
was the key that opened the courthouse door for Plaintiff Jackson and the minor plaintiff. Abrams,
605 F.3d at 246. However, this was a highly desirable case to bring, involving sympathetic
plaintiffs and promising a lucrative recovery against a party with deep pockets. Because this case
was desirable among plaintiffs’ attorneys, general principles underlying the usefulness of
contingency fees apply to a lesser degree.
The contingency of fee factor also considers risks faced by attorneys undertaking the case.
This case presented a neonatal malpractice claim that required Plaintiffs’ Counsel to front over
$180,000 in expenses, which even when repaid, will not be repaid with interest. Additionally, the
case presented no guaranty of recovery for Plaintiffs, even if they were very sympathetic to a
potential jury, because the minor plaintiff’s life expectancy was uncertain, and because Defendants

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had theories and evidence in their defense on the malpractice liability issue. Any risk incurred,
however, was spread across four law firms that represented Plaintiffs, making the contingency of
recovery in this case less risky for Plaintiffs’ Counsel. Despite the shared risk Plaintiffs’ Counsel
enjoyed, the prospect of Plaintiffs recovering an award in this case was uncertain enough that,
considering the important purpose of contingency fees along with Plaintiffs’ Counsel’s
expectations at the outset, this factor weighs in favor of the agreed upon contingency fee.
7. Time pressures imposed. “Priority work that delays the lawyer's other legal work is
entitled to some premium. This factor is particularly important when a new counsel is called in to
prosecute the appeal or handle other matters at a late stage in the proceedings.” Johnson, 488 F.2d
at 718. The circumstances of this case presented no time pressures as contemplated by Johnson.
As such, the time pressures factor weighs in favor of awarding a fee that is not considered
“premium,” but rather, closer to the customary fee for medical malpractice cases.
8. Award involved and results obtained. “[T]he most critical factor in determining the
reasonableness of a fee award is the degree of success obtained.” Abrams, 605 F.3d at 247. In this
case, Plaintiffs’ Counsel obtained settlement amounts that constitute a significant result for both
Plaintiffs, considering the contested issues of liability and damages, as wells as the evidence
favoring Defendants. Had the Parties gone to trial, the sum could have been more, but it also could
have been less. The total settlement will be enough money to care for the minor plaintiff for the
rest of his life, even if he lives to the age of 70, according to the conservator of M.M.’s estate.
Moreover, Plaintiff Jackson has indicated she believes the agreed upon 40% contingency fee is in
the best interests of her son, the minor plaintiff, and she asks this Court to approve the requested
contingency fee on St. Mary’s settlement. Although the incapacitated minor plaintiff is unable to
voice any opinion on the fee, the GAL appointed to protect his interests has found the 40%

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contingency fee is fair and reasonable and asked this Court to award a 40% fee. To be sure, “a
court must independently investigate and evaluate any compromise or settlement of a minor's
claims to assure itself that the minor's interests are protected, even if the settlement has been
recommended or negotiated by the minor's parent or guardian ad litem.” Abrams, 605 F.3d at 247
(citation and quotation omitted). Nevertheless, Plaintiffs’ Counsel’s triumph in settling this case
for a sizeable sum, along with Plaintiff Jackson and the GAL’s belief that the agreed upon fee is
reasonable, all weigh in favor of awarding the agreed upon contingency fee.
9. Experience, reputation, and ability of the lawyer. Attorneys with experience or
specializations are expected to receive larger compensation than greenhorn attorneys. See Johnson,
488 F.2d at 719. Under this factor, the Court considers evidence submitted by the Parties regarding
the experience, reputation, and ability of Plaintiffs’ Counsel.
Plaintiff’s Counsel has not submitted to the Court their curricula vitae, but they have filed
affidavits by attorneys from West Virginia regarding Plaintiffs’ Counsel’s experience, reputation,
and specializations. One affidavit states certain attorneys representing Plaintiffs have “quite
remarkable” experience in obstetrical malpractice cases, while other attorneys representing
Plaintiffs have exceptional trial skills that make all their cases more valuable. Defense Counsel
has not spoken about their experience litigating against Plaintiffs’ Counsel.
The Amended Petition and Attorney’s Fees Statement indicate that Plaintiffs’ Counsel
consists of highly-skilled, experienced lawyers, who have specialties in neonatal malpractice law,
and who enjoy regional and national reputations for obtaining large verdicts for their clients.
Several of the attorneys have practiced for more than thirty-five years. One of Plaintiffs’ attorneys
is a star on the Fox television network’s Power of Attorney and a CBS radio program about law;
he also regularly appears on law-related shows presented on other television stations and has “won

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more multimillion dollar awards than any other attorney in the country.” Amended Petition, at 18.
Representations in the Amended Petition, Attorney’s Fees Statement, and affidavits
support finding the experience, specialization, reputation, and ability of Plaintiffs’ Counsel weigh
in favor of a contingency fee suitable for well-experienced, highly-regarded, and skilled attorneys,
which presumably is reflected in the agreed upon fee.
10. Undesirability of the case. “Undesirability and relevant risks of a case must be evaluated
from the standpoint of plaintiff's counsel as of the time they commenced the suit, not retroactively,
with the benefit of hindsight.” Williams, 2015 WL 127862, at *9.12 This is the sort of case that
plaintiffs’ attorneys find highly desirable. The nature and circumstances of the minor plaintiff’s
injury were such that some liability and a large pay-out were promised from the get-go, even if not
assured as litigation progressed. An incapacitated minor plaintiff is also a very sympathetic client
to represent. And the inclusion of the federal government as a defendant ensured that any judgment
for damages would be recoverable. This case is unlike the civil rights cases contemplated in
Johnson, which because of their unpleasant reception by a misunderstanding community could
result in a negative economic impact on the attorney’s practice. Johnson, 488 F.2d at 719. At
bottom, the factual circumstances and defendants in case made it highly desirable among plaintiff’s
attorneys. For that reason, this factor weighs in favor of awarding a customary fee.
11. Nature and length of the professional relationship between lawyer and client. The
nature of the relationship between lawyer and client is a particularly important factor in this case.
While seeking counsel, Plaintiff Jackson was particularly vulnerable. She had recently given birth

12

The Court is careful not to conflate analysis under this factor regarding risk with analysis under
the contingency of fee factor regarding the risks that Plaintiff’s Counsel undertook in agreeing to
represent Plaintiffs. Accordingly, the risk to Plaintiffs’ Counsel of losing this litigation is not
considered here, but rather, under the contingency of fee factor.
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to a severely injured child requiring immediate, constant, and expensive medical treatment. At that
time, she was a single-parent racking up medical bills with no hope of ever being able to pay
them.13 Consequently, Plaintiff Jackson also faced uncertainty about her son’s continued medical
care. Just ten days after giving birth, and still suffering from injuries giving rise to this dispute,
Plaintiff Jackson retained Plaintiffs’ Counsel to represent her and her son. Because this is her first,
and hopefully last, medical malpractice case, Plaintiff Jackson is an unsophisticated consumer of
legal services. Plaintiff’s Counsel, on the other hand, has vast experience in medical malpractice
cases, as discussed above, under the experience factor. Experience informs attorneys how to
negotiate with potential clients, including how to procure desirable fees. There is no indication
Plaintiffs and their counsel, composed of attorneys at four different firms, had any relationship
before this proceeding or that they will continue a relationship after this case is settled. All of these
circumstances—Plaintiff Jackson’s vulnerable state, the proximity of injury to retaining counsel,
imbalanced legal sophistication—weakened Plaintiff Jackson’s ability to bargain, on her behalf
and the minor plaintiff’s, in retaining Plaintiffs’ Counsel. Thus, the nature and length of the
professional relationship factor weighs strongly in favor of a fee not higher than customary or
awards in similar cases.
12. Fee awards in similar cases. The contingency fee award in medical malpractice cases like
this one—cases involving a minor or incompetent person—is usually 33.3%. See Williams, 2015
WL 127862, at *6, 11 (collecting cases and noting a one-third contingency fee is standard in
personal injury cases involving incompetent, adult plaintiff). Congress has capped attorney’s fees
in FTCA medical malpractice cases at 25%. In other medical malpractice cases, a 40% fee is not
unheard of, and indeed, may be appropriate in many circumstances. Particularly, a 40% fee might

13

Plaintiff Jackson has extremely low income, considering that her son qualifies for Medicaid.
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be appropriate where the plaintiff alleging medical malpractice is an adult with full mental
capacity. An adult with full mental capacity is capable of bargaining with prospective counsel over
attorney’s fees. In cases like this, however, one plaintiff, an incapacitated minor, has no bargaining
power and must rely on another plaintiff to negotiate a contingency fee. Courts are duty-bound to
protect the interests of minors and people who are incompetent. Other courts have found a 33.3%
contingency fee was appropriate in similar cases, i.e., ones involving a plaintiff who is a minor or
incompetent person. See Williams, 2015 WL 127862, at *6 (attorney charged 33.3% contingency
fee instead of typical 40% fee because the plaintiff suffered a catastrophic bicycling injury leaving
him incompetent); Boatright ex rel. Boatright v. R.J. Cormon R.R. Co./Material Sales, 244 Fed.
App'x 312, 314 (11th Cir. 2007) (affirming district court’s finding that agreed-upon 40%
contingency fee was excessive in light of incompetent plaintiff’s Alzheimer’s disease); see also
Gorham, 2015 WL 2454261, at *4 (assuming 33.3% was common fee for representing client
severely injured by amusement park ride but finding lower fee appropriate because, in part,
attorney represented a minor). Looking to other cases, a fee higher than 33.3% is uncommon where
attorneys represent clients who are minors or incompetent, because, in part, such clients lack the
mental ability to bargain and legal authority to contract. Therefore, considering other medical
malpractice cases brought on behalf of minor or incompetent clients, a 33.3% fee is reasonable,
and a 40% fee for representing a minor in a settling medical malpractice case would be excessive.
To conclude, applying Johnson’s factors to the instant case, the Court FINDS the requested
40% contingency fee exceeds a reasonable attorney’s fee for the settlement of the minor plaintiff’s
claims. Although the goal of contingency of fees, experience and reputation of Plaintiff’s Counsel,
and results obtained all weigh in favor of awarding the requested 40% fee, and despite the novel
or difficult question factor leaning slightly toward a higher than customary fee, the remaining

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factors weigh strongly in favor of a 33.3% fee—the percentage awarded customarily and in similar
cases. The time and labor put into this case was not far above average; Plaintiffs’ Counsel
demonstrated average skills and did not show they were substantially precluded from other
employment; customarily, a contingency fee around 33.3% has been awarded in similar, settling
neonatal malpractice cases brought on behalf of minors; this case imposed no special time
pressures and was highly desirable among plaintiffs’ attorneys, and most importantly, the
individual bargaining on behalf of the minor was put in a position of extreme disadvantage by her
circumstances. Awarding a fee less than that requested by Plaintiff’s Counsel and agreed to by
Plaintiff Jackson is no light decision, but applying Johnson’s factors to the instant minor’s
settlement, it is what this Court is duty-bound to do. Accordingly, the appropriate contingency fee
for bringing the minor plaintiff’s claims to settlement is 33.3%, not the 40% requested by
Plaintiffs’ Counsel.
IV.

Conclusion

For the reasons above, the Court GRANTS the Amended Petition to Approve Infant
Settlement, but for attorney’s fees, AWARDS a contingency fee at 33.3%, instead of the requested
40% rate. Considering the minor plaintiff’s interests in each proposed settlement, the Court FINDS
and RULES:


The total amount of the proposed settlements with the United States and St. Mary’s
is fair and reasonable;



The structure of the proposed settlements is fair and reasonable;



The expenses proposed in the Amended Petition to Approve Infant Settlement,
except for part of the proposed attorney’s fees, are fair, reasonable, and incurred in
connection with this litigation;

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

For attorney’s fees, a 25% contingency fee on the settlement with the United States
is fair and reasonable, and a 33.3% contingency fee on the settlement with St.
Mary’s is fair and reasonable;



Plaintiffs’ Counsel may retain $100,000 of the settlement proceeds for a period of
ninety days, as proposed in the Amended Petition to Approve Infant Settlement, for
the purpose of paying any unexpected expenses incurred in this litigation, provided
that: (1) the Michigan court-appointed conservator over M.M.’s estate approves any
proposed expense before settlement proceeds are used to pay such expense, and (2)
when ninety days has elapsed, Plaintiffs’ Counsel shall repay the remaining
retained settlement proceeds plus interest accrued;



Any settlement proceeds remaining after the proposed expenses have been paid
shall be placed in the special needs trust for the benefit of M.M.;



After all expenses have been paid, Plaintiffs’ Counsel shall submit to the Court
under seal a closing statement reflecting its compliance with this Opinion and
Order.

Based on these findings and rulings, the Court DISMISSES WITH PREJUDICE this
civil action against Defendant St. Mary’s Medical Center, Inc. Additionally, the Court ENTERS
the following accompanying Order Approving Infant Settlement with the United States, which
shall be unsealed.
The Court DIRECTS the Clerk to send a copy of this Opinion and Order to counsel of
record and any unrepresented parties.
ENTER:

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Jul 13, 2016