In re Mentor Corp.
| Decision Date | 25 October 2016 |
| Docket Number | MDL Docket No. 2004,Case No. 4:12-cv-176 (Taylor),4:08-MD-2004 (CDL) |
| Parties | IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION |
| Court | U.S. District Court — Middle District of Georgia |
The jury found in favor of Plaintiff Teresa Taylor and against Mentor Worldwide, LLC on Taylor's product liability claims based on her experience with Mentor's suburethral sling product, ObTape Transobturator Tape. The jury awarded Taylor $400,000.00 in compensatory damages and $4 million in punitive damages (which the Court remitted to $2 million). Presently pending before the Court is Taylor's motion for attorney's fees and costs (ECF No. 196 in 4:12-cv-176), which is granted to the extent set forth in this Order.
Under Florida law, "[i]f a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand." Fla. Stat. § 768.79(1). "If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served." Id. § 768.79(6)(b).
On September 17, 2015, Taylor served Mentor with a written "proposal for settlement" under § 768.79, offering to settle her claims for $150,000. Pl.'s Mot. for Att'y's Fees & Costs Ex. B, Pl.'s Proposal for Settlement, ECF No. 196-2. Mentor did not accept the proposal, and the case went to trial. The jury awarded Taylor compensatory damages of $400,000—more than two times the amount of her offer. Thus, Taylor is entitled to recover fees and costs incurred from the date of September 17, 2015. Mentor contends, however, that the Court should deny Taylor's request for fees under Fla. Stat. § 768.79(7)(b), which sets forth factors to be considered in determining the reasonableness of attorney's fees. Those factors include: the "apparent merit or lack of merit in the claim," "[t]he closeness of questions of fact and law at issue," and whether Taylor "unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer." Id. § 768.79(7)(b)(1), (3), & (4). Mentor's chief contention is that Taylor's experts did not adequately explain their opinions prior to trial—opinions that Mentor thoroughly examined on cross-examination at trial and vigorously denied as lacking merit. It is somewhat disingenuous for Mentor's counsel to suggest that it was not sufficiently familiar with Taylor's claims to have responded to her offer given that counsel is lead counsel for Mentor in the MDL that includes hundreds of similar claims and is likely the leading expert in the world on how to defend these cases. The Court is not convinced that Taylor unreasonably refused to provide information necessary for Mentor to evaluate the reasonableness of her offer or that Mentor would have evaluated her claims differently if she had provided additional information before trial. The Court declines to deny Taylor's request for fees on this basis. The parties do not agree on the amount of fees and costs that Taylor may recover. The Court addresses each issue in turn.
"Where entitlement to attorneys' fees award is warranted," Florida courts employ "the 'lodestar' method . . . for calculating a reasonable attorney's fee." 22nd Century Props., LLC v. FPH Props., LLC, 160 So. 3d 135, 142 (Fla. Dist. Ct. App. 2015) (quoting Genser v. Reef Condo. Ass'n, 100 So. 3d 760, 761 (Fla. Dist. Ct. App. 2012)). To determine the lodestar, the Court must multiply "the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party's attorney." Id. (quoting Ottaviano v. Nautilus Ins. Co., 717 F. Supp. 2d 1259, 1264 (M.D. Fla. 2010)). "The fee applicant bears the burden of presenting satisfactory evidence to establish that the requested rate is in accord with the prevailing market rate and that the hours are reasonable." Id. ().
"A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Smith v. Sch. Bd., 981 So. 2d 6, 9 (Fla. Dist. Ct. App. 2007) (quoting Norman, 836 F.2d at 1299). Again, Taylor's counsel "bears the burden . . . of supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate." Norman, 836 F.2d at 1303. "Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence." Smith, 981 So. 2d at 9 (quoting Norman, 836 F.2d at 1299). "Perhaps the strongest and best evidence of an attorney's market rate is the hourly rate he/she charges clients." Id. (quoting Dillard v. City of Greensboro, 213 F.3d 1347, 1354 (11th Cir. 2000)); accord Jomar Props., L.L.C. v. Bayview Constr. Corp., 154 So. 3d 515, 518 (Fla. Dist. Ct. App. 2015). "[T]he best information available to the court is usually a range of fees set by the market place, with the variants best explained by reference to an attorney's demonstrated skill." Norman, 836 F.2d at 1301. "It is the job of the district court in a given case to interpolate the reasonable rate based on an analysis of the skills enumerated above which were exhibited by the attorney in the case at bar." Smith, 981 So. 2d at 9 (quoting Norman, 836 F.2d at 1301).
Taylor employed three attorneys and one paralegal from the Houston, Texas firm of Blizzard & Nabers, LLP, as well as one attorney from the Houston firm of Laminack Pirtle & Martines, LLP. The attorneys are Edward Blizzard, Thomas Pirtle, Katherine Cornell, and Matthew Greenberg; the paralegal is Chuck Hunger. Taylor had a contingent fee arrangement with her legal team, so counsel did not bill her based on an hourly rate, and she did not pay counsel based on an hourly rate. Taylor contends that $800 is a reasonable hourly rate for Mr. Blizzard and Mr. Pirtle; $300 is a reasonable hourly rate for Ms. Cornell and Mr. Greenberg; and $95 is a reasonable hourly rate for Mr. Hunger. Mentor objects to these hourly rates as unreasonable.
Again, "[a] reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299. And Taylor "bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates." Id. "[T]he 'relevant market' for purposes of determining the reasonable hourly rate for an attorney's services is" usually the place where the case was filed. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999). Taylor filed her action directly in this Court as part of the ObTape multidistrict litigation proceeding. Had this action not been filed in the MDL, or had both sides not agreed to try the case in Georgia, the proper venue for the case was the U.S. District Court for the Northern District of Florida. Thus, the Court finds that the relevant markets are the Northern District of Florida and the Middle District of Georgia. Taylor did not present any evidence on the prevailing market rate in the Northern District of Florida. This Court is well aware of the prevailing market rate in the Middle District of Georgia.
Taylor did not point to any evidence, such as an affidavit, to support her hourly rate claim for Mr. Pirtle.1 Taylor also did not point to any evidence to support her hourly rate claim for Ms. Cornell, Mr. Greenberg, or Mr. Hunger.2 The only evidence Taylor submitted to support her hourly rate claim for Mr. Blizzard is: (1) evidence that Mr. Blizzard received $768.62 per hour for common benefit fee time he submitted in the Depuy ASR Hip Implant MDL No. 2197, and (2) evidence that Mr. Blizzard received $750 per hour for common benefit fee time in the Vioxx MDL No. 1657. The Court is not convinced that common benefit fund awards in settled MDLs should have any bearing on the reasonable hourly rate for preparing and trying a case after MDL pretrial proceedings are complete. See, e.g., Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768, 773-74 (11th Cir. 1991) (). Taylor is seeking to recover fees and costs associated with trial preparation and trial advocacy—fees and costs that were incurred after all of the pretrial proceedings had concluded and the case was ready for trial. Under these circumstances, the Court finds that it should award the prevailing market rate in the relevant legal community—the Northern District of Florida or the Middle District of Georgia.
Taylor, however, contends that she should recover fees at a Houston, Texas rate even though, as discussed above, she did not point to evidence of the prevailing market rate in Houston for an attorney representing a plaintiff in a medical device product liability case. "A prevailing plaintiff is not entitled to have the losing party pay for an attorney with the most expertise on a...
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