In re Katrina Canal Breaches Consol. Litig.
| Decision Date | 16 November 2011 |
| Docket Number | CIVIL ACTION NO. 05-4182 |
| Parties | In re: KATRINA CANAL BREACHES CONSOLIDATED LITIGATION PERTAINS TO: BARGE Weisler v. Seymour, et al. C.A. No. 09-2737 |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court are the following motions:
The Court will address each of these in the appropriate order.
This case arises out of litigation in the BARGE category of the In re Katrina Canal Breaches Consolidated Litigation. The Barge Plaintiffs Subgroup Litigation Committee ("BPSLC") was preparing to move to certify a class in the BARGE matter. In doing so, Alan Fuchsberg ("Fuchsburg") on behalf of "a small group of attorneys" contacted Dr. Richard Weisler ("Weisler") by e-mail on or about May 14, 2008, to request that he act as an expert to establish an emotional injury subclass. The class was described in that e-mail as comprised of approximately "60,000 residents in the 9th Ward, St. Bernard's (sic), New Orleans, due to the uniquely swift and traumatic nature of flood damage to their neighborhood." (Doc. 20499-3, Weisler Dep. Exh. 18, Oct. 9, 2011).
In an e-mail from Fuchsberg to the BPSLC including defendants Rick Seymour and Brian Gilbert, Fuchsberg wrote:
I just got off a conference call with two psychiatrists professors (from LSU school of mental health and Duke University) who together have worked with Katrina victims, and are populist psychiatrists. They have agreed to coauthor a report by June 12. They want to interview the class reps in New Orleans next Saturday. Their names are Dr. Mark Townsend and Dr. Richard Weisler. Theu (sic) will send a plan summary after the weekend for our review.
(Doc. 20541-16, e-mail from Richard Seymour, dated May 16, 2008). Suffice it to say there is overwhelming and clear evidence that Weisler along with other participants prepared a report which was filed by the July 1, 2008 deadline which task was accomplished under the direction of certain lawyers of the BPSLC. Attached to that expert report, Weisler indicated the expert compensation for all six experts involved; as to himself, it stated that Weisler was beingreimbursed at a rate of $600 an hour and had worked to that point "over 260 hours" or $156,000 (Doc. 20508-10). Weisler actually billed defendants for 287.75 hours.1
During the month of July, Weisler apparently spent 88.5 hours preparing for his deposition which exercise included reviewing literature and data, proofing plaintiff evaluations, and corresponding with the Defendants. This work was be billed at $600 an hour for a total of $53,100. Then in the month of August, the billing continued for another 72.5 hours which included 8/0 for cancelled patients because deposition cancelled at the last minute and 8.0 because of missed work opportunities. Thus, Weisler charged another $43,500 for the month of August. These figures do not take into account any costs apparently amounted to $2,799.56.
It is unclear exactly what invoices were sent at what time, but by July 30, 2008, Fuchsberg acknowledged the receipt of an invoice and stated that it was much more than they expected or could afford and basically requested that Weisler slash his bill. Indeed, on July 29, 2008, Seymour wrote:
(Doc. 20499-20 e-mail dated July 29, 2008 from Seymour to Fuchsburg). Nonetheless, Weisler continued to prepare for a deposition that was scheduled for August 15, 2008 until August 12, 2008 at which point Brian Gilbert advised that these efforts in connection with the Weisler deposition were to cease. (Doc. 20499-21).
It must be noted that in an e-mail dated July 30, 2008 at 10:33 a.m. from Alan Fuchsberg to Rick Seymour, Fuchsberg explained Weisler's explanation of his charges and noted, (Doc. 2054-17 P. 1 of 2). Then in a subsequent e-mail dated July 30, 2008 at 12:51, Fuchsberg states, "There was no agreement except that he indicated that his hourly rate was $600." (Doc. 20541-17 page 2 of 2).
Weisler filed the instant suit against Richard T. Seymour, Esq., Richard T. Seymour, P.L.L.C., Alan L. Fuchsberg, Esq., Alan L. Fuchsberg Law Firm, Brian Gilbert, Esq., Law Office of Brian Gilbert, P.L.C., and Wiedemann & Wiedemann P.L.C.3 (referred to collectively as "Defendants") Counterclaims were then filed by these attorneys maintaining that there was a material breach of contract, there was a failure of consideration in the contract and that Weisler failed to diligently engage in the work he was contracted to do, was grossly negligent, and a myriad of other defalcations including his billing practices. With that background, the Court will first address Dr. Richard Weisler Motion for Partial Summary Judgment.
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record "which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When the moving party has carried its burden under Rule 56, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995).
"A genuine issue of material fact exists 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment evidence must be "viewed in the light most favorable to the nonmovant, with all factual inferences made in the nonmovant's favor." Bazan ex rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir. 2001), citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
[C]onclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment. The Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.
RSR Corporation v. International Insurance Company, 612 F.3rd 851,857 (5th Cir. 2010).
A. Motion for Partial Summary Judgment filed by plaintiff Dr. Richard H. Weisler (Doc. 20499) and Seymour Defendants' Motion for Summary Judgment on Plaintiff's Open Account Claim (Doc. 20504)
Weisler has filed the instant Motion for Partial Summary Judgment seeking judgment in his favor with respect to Defendants' breach of contract, the existence of an open account and the dismissal of dismissal of Defendants' counter-claims. Having reviewed the pleadings, the memoranda, the exhibits and the relevant law, the Court finds for the reasons that follow that there exists a contract for services and that it is in the nature of an open account. All other issues presented are not subject to judgment as there are questions of fact that remain.
Louisiana Civil Code art. 1927 states:
La. Civ. Code art. 1927. From the foregoing explanation of events, it is clear...
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