Stephen Harris v. Bradley Memorial Hospital (2011)

MEMORANDUM OF DECISION ON PUNITIVE DAMAGES

On May 18, 2010, the Connecticut Supreme Court released its decision in Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315 (2010).   The court reversed the trial court's entry of judgment notwithstanding the verdict, reversed the court's denial of punitive damages, and affirmed the court's entry of a remittitur, effectively reinstituting a jury verdict of $50,000 economic damages and $100,000 noneconomic damages.   The Supreme Court remanded the matter with direction to conduct further proceedings and to enter judgment accordingly.

In its verdict, the jury determined that the defendant interfered with the plaintiff's business expectancies with the intentional design to injure the plaintiff or with reckless indifference as to whether it would injure him.   Jury Interrogatory # 7.   The jury was instructed that by answering “yes” to Jury Interrogatory # 7, they were determining that the plaintiff was entitled to an award of punitive damages, and they were told that the amount of any such damages would be assessed separately by the court.   Jury Charge (Schuman, J.).

On December 9, 2010, this court has conducted an evidentiary hearing on punitive damages.   The court's findings and orders follow.

Under the common law of Connecticut, it has long been held that a court may award punitive damages for intentional torts, with a consideration of the attorney fees and costs expended by the successful plaintiff in prevailing in the litigation.   See, e.g., Linsley v. Bushnell, 15 Conn. 225 (1842).   More properly stated, common law punitive damages are limited in amount by the expenses of the litigation, not including taxable costs.  Maisenbacker v. Concordia, 71 Conn. 369, 378, 42 A. 67 (1899);  see also Hanna v. Sweeney, 78 Conn. 492, 494-95 (1906).   Although such an award is nominally not compensatory, in fact and effect the award is designed for a compensatory purpose in cases of intentional torts.  Id.

In considering a punitive damages award, the court may take into consideration the reasonable attorney fees and other nontaxable disbursements that were necessary to prosecute the action to a successful conclusion.  Berry v. Loiseau, 223 Conn. 786, 832, 614 A.2d 414, 437 (1992).

THE LEGAL CLAIMS OF THE DEFENDANT ON PUNITIVE DAMAGES

The court finds unpersuasive the defendant's argument that in this case the court should engraft into its findings on punitive damages a consideration of the degree of the defendant's reprehensibility, the proportionality or ratio of the punitive damages request to the compensatory damage award, or the likely amount of any comparable civil penalty, the latter as suggested by State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003).   Since the common law of Connecticut already prescribes an upper limit on punitive damage awards, measured by the attorney fees and costs expended by the prevailing party, there is already in place a protection from caprice or from an arbitrarily high award that the holding in State Farm prevents.

To be sure the court may exercise its discretion in an appropriate case to consider awarding a lesser amount than that expended in fees and costs by the plaintiff or on his behalf, but the court finds no reason to do so in this case.   Rather the court finds that the plaintiff is entitled to a punitive damages award that can be calculated by the reasonable and necessary expenditure of time and expenses by his legal team to achieve, under difficult circumstances, the award represented by the jury verdict as affirmed by the Connecticut Supreme Court.

The defendant argues that O'Leary v. Industrial Park Corp., 211 Conn. 648, 560 A.2d 968 (1989), prevents an award for all appellate work in this case.   The court finds that O'Leary does not prevent an award which includes the attorney fees spent in prosecuting the plaintiff's appeal from the judgment notwithstanding the verdict.   Indeed but for the successful prosecution of the appeal, there would be no award of any kind for the plaintiff.   The fact that the jury determined that punitive damages should be a component of the award to which the plaintiff was entitled, and that the Connecticut common law permits a consideration of the attorney fees and costs necessary to obtain the award argues for a finding that appellate fees should be included in a punitive damages award in this case, as the appellate fees and costs represent fees and costs that were reasonable and necessary to obtain judgment in this matter.

THE EVIDENTIARY CLAIMS OF THE DEFENDANT

In its post-hearing memorandum, the defendant challenges hundreds of time entries of the plaintiff's legal team as vague, excessive, insufficiently documented (“multiple tasks under one time entry”), or as inefficient (paralegal or secretarial task performed by attorney).   As to the latter the defendant argues that when it is essentially clerical or paralegal work that is being done by the attorney, the attorney should not be able to charge that task at the attorney's rate rather than at the clerical or paralegal rate.   Ordinarily the court might agree with this position.

However after reviewing all of the time records, with a special eye to those challenged by the defendant, and after considering all of the evidence at the punitive damages hearing, with particular attention to the evidence about the complexity of the case and the intensity of the defense, the court declines to disallow any substantial sums from plaintiff's attorney's account, except as noted herein.

The court concludes from the evidence presented that the time spent by plaintiff's legal team was reasonable, necessary and was performed in a reasonably efficient manner.¹  Moreover because the $250 hourly rate requested by plaintiff's chief counsel Attorney Moore Leonhardt is so much lower than what the court would otherwise be inclined to allow for an attorney of her experience, the argument that certain of her attorney tasks should be charged at a paralegal or clerical rate is unpersuasive.   Finally on the issue of hours/amount, the court finds credible the post hoc review of the many pages of time records undertaken by both Attorney Moore Leonhardt and Attorney Burgh to cull out entries that in retrospect seemed duplicative or otherwise unreasonable to charge to the defendant.²

The defendant also argues that not all of the fees and costs that the plaintiff claims as part of punitive damages were directly expended in prosecution of the tortious interference claim at the Superior Court level, and thus should not be part of the punitive damage award.   The defendant points to certain administrative proceedings that preceded or occurred in tandem with the Superior Court action or certain unsuccessful arguments advanced by the plaintiff before or during trial.   Again, in another case, this claim might have merit, but because of the interrelation of the factual and legal claims here, the court finds that the tasks in furtherance of the tortious interference claim are inseparable from the tasks associated with those which the defendant claims ought not be the subject of the punitive damage award.

For example, in addition to the tactical and strategic decisions that any plaintiff and his counsel must make as part of the course of litigation, certain of the actions must be undertaken in an effort to limit any further effects of the claimed injury to the plaintiff.   In this case, for instance, the plaintiff chose to pursue injunctive relief as part of this lawsuit, an avenue that was ultimately unsuccessful.   But because the plaintiff had an ongoing duty to mitigate his damages, see, e.g. Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 223 (2004), it is unreasonable to look only to the attorney fees and expenses that were expended within the four corners of the tortious interference claim, as the plaintiff attempted to vindicate his rights.   The court finds that the fees and expenses awarded below as punitive damages were not only reasonable and necessary in pursuit of the eventual success on the tortious interference claim, thus finding that they were all necessarily incurred as part of a single course of litigation designed to vindicate the plaintiff's rights, but also were part of the reasonable and necessary duty he shouldered in attempting to avoid any possible defense claim that he had, at any point, failed to mitigate his damages.

On this issue, the testimony of Attorney Wesley Horton as an expert witness for the plaintiff was highly persuasive concerning both the reasonableness of the fees and the necessity of incurring even those fees that were not directly associated with any discovery, motion practice, or trial preparation or presentation.   The evidence from Attorney Horton explained how the competent and careful handling of the Department of Public Health proceedings by the plaintiff's legal team prevented the causes of action on which the plaintiff prevailed at trial from being waived or defeated along the way.   The court credits Horton's testimony and opinion that from the first administrative proceedings at the hospital level through the prosecution of the appeal to the Connecticut Supreme Court, the work of the plaintif'fs legal team was of a piece and was all reasonably necessary to the success of the plaintiff on his claim of tortious interference that gave rise to the finding by the jury that forms the basis for the award of punitive damages.   Also, there is authority for a conclusion that an attorneys fee for pursuing a recovery upon a common set of facts and circumstances should not be reduced because some legal claims were successful and some were not, if the evidence would largely have been identical as to each such claim.   See Taylor v. King, 121 Conn.App. 105 (2010).³

Finally as to the size of the punitive damage award, this matter was vigorously defended by the defendant, such that the levels of time, competence, energy and intensity from the plaintiff's legal team on the plaintiff's behalf must be properly recognized as part of this award.   This is not to say that the defendant's team acted other than professionally at any turn.   Rather the legal teams on both sides in this case fully embodied the term “zealous representation.”   When there was a fact or legal issue that could be contested, the defendant did so, such that the plaintiff's legal team was required to devote a very high level of competence and attention to this matter, more so than in any case in recent memory in this courthouse.

FINDINGS OF PUNITIVE DAMAGES

The Internal Hospital Administrative Proceedings-February 13, 2001-September 30, 2002

As to the internal administrative proceedings conducted by the defendant involving the hospital privileges of the plaintiff, the court finds that there was a reasonable and necessary expenditure of attorney and office fees (which is substantiated by appropriate documentation) by Attorney Joanne Sheehan in the amount of $36,440.50, and that amount is allowed.

As to Attorney Sheehan's costs regarding the internal administrative proceedings, the expenditures to Willinger, Willinger & Bucci are inadequately explained and are disallowed (in the amount of $587.00).   The remaining expenditures by Attorney Sheehan for costs of copying, court reporter's transcripts and the like during the period in which the hospital administrative proceedings were ongoing, in the amount of $3,605.27 is allowed.

Attorney Moore Leonhardt began to represent the plaintiff toward the end of the administrative proceedings, but did not keep or retain organized time records for much of that period so she seeks only $1,500 in fees and $27.00 in costs for this period, for which there is an adequate basis in the evidence, and so those fees and costs are allowed.

Total Fees and Costs approved for representation at this phase:  $41,572.77.

The Connecticut Department of Public Health proceedings-August 6, 2003-July 29, 2005

Total Fees and Costs for representation at this phase:  $10,837.57.

The Superior Court action:  Harris v. Bradley Memorial Hospital -September 10, 2002-December 6, 2010

From the claim of Attorney Moore Leonhardt that she expended the amount of $408,097.50, the court disallows the expenditures noted in footnotes 1 and 3 of this opinion, and finds there was a reasonable and necessary expenditure of attorney fees by the office of Attorney Moore Leonhardt in the amount of $403,547.50 which this court allows as part of punitive damages.   The court finds there was a reasonable and necessary expenditure of costs in the amount of $20,278.94.   The court finds that the plaintiff himself advanced funds for necessary disbursements for expenses in connection with his legal representation separate from that of his legal team in the amount of $3,413.16.

Total Fees and Costs for representation at this phase:  $427,239.60.

The Interlocutory Appeals-August 2005 and October 2006-Attorney P. Jo Anne Burgh

The court finds the consultation with and representation by Attorney Burgh on these two interlocutory appeals to have been reasonable and necessary, as were the expense of the following fees and costs:  Attorney fees-$18,060;  Costs-$502.69

Total Fees and Costs to Attorney Burgh for consultation and representation at this phase:  $18,562.29.

The Appeal from the Superior Court Judgment-September 2007-November 1, 2010

The court finds that the fees and costs expended by Attorney Burgh and her office and the fees for the assistance of Attorney Schumacher were reasonable and necessary for this phase in the amount of $92,559 for fees and $1,082.97 for costs.   The court finds the reasonable and necessary fees for attorney Moore Leonhardt for this phase were $3,825.

Total Fees and Costs for the appeal from the Superior Court judgment:  $97,466.97.

The fee for Attorney Horton-September 2010-December 9, 2010

The court finds that the consultation and retainer of Attorney Wesley Horton as an expert witness was reasonable and necessary in order for the plaintiff to carry his burden of proof with respect to the issue of punitive damages and attorney fees.   The court finds that the following fee was expended and was reasonable and necessary.

Fee for Attorney Horton:  $12,265.

Additional fees for hearing on punitive damages-December 9, 2010-January 3, 4, 2011

Fee for Attorney Moore Leonhardt:  $4,175.

Fee for Attorney Burgh:  $800.

CONCLUSION

As directed by the Supreme Court, the court enters judgment on the first, second, and third counts of the plaintiff's complaint for compensatory damages in the amount of $150,000, plus taxable costs.   In addition, on the third court, as punitive damages, the court finds the plaintiff to be entitled to the sum of $612,919.20 from the defendant, and judgment shall enter accordingly.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. For example the court notes that work performed as a group by multiple staff in the Moore Leonhardt office was sometimes charged only as attorney time with no additional charge for paralegal or law clerk time.   See e.g., entry for June 23, 2006..  FN1. For example the court notes that work performed as a group by multiple staff in the Moore Leonhardt office was sometimes charged only as attorney time with no additional charge for paralegal or law clerk time.   See e.g., entry for June 23, 2006.

FN2. To these the court adds only one other:  for September 3, 2003, for $150 which the court disallows..  FN2. To these the court adds only one other:  for September 3, 2003, for $150 which the court disallows.

FN3. That being so, however, the court accepts the concession of Attorney Moore Leonhardt that there was approximately $4,400 in fees expended to try to develop the unfair trade practices claim, which was unsuccessful;  and the court has deducted that amount from the trial attorney fees..  FN3. That being so, however, the court accepts the concession of Attorney Moore Leonhardt that there was approximately $4,400 in fees expended to try to develop the unfair trade practices claim, which was unsuccessful;  and the court has deducted that amount from the trial attorney fees.

Pittman, Patty Jenkins, J.