Western Dermatology v. Vital Works, Inc. (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO REARGUE MOTION FOR PUNITIVE DAMAGES, ATTORNEYS FEES, PREJUDGMENT INTEREST AND COSTS

I. Background

This case has a long and complex pretrial and trial history further complicated by proceedings which have continued after appeals were filed.   Following the September 1, 2009 decision by the court which found for the plaintiff against Vital Works as to Counts II, IV and VI and against Cerner as to Count VI, plaintiff moved the court to award costs, attorneys fees and prejudgment interest citing Connecticut General Statutes §§ 42–110(g), 42–150bb and 37–3a.   Plaintiff also filed a motion for punitive damages dated November 17, 2009, and a motion for award of costs dated November 20, 2009.   Both defendants filed objections to plaintiff's post-judgment motions on December 7, 2009, and the court heard argument thereafter on December 8, 2009.   Defendants Vital Works, Inc. n/k/a Amicas, Inc. (“Vital Works”) and Cerner Physicians Practice, Inc. (“Cerner”) objected to Plaintiff's Motion for Punitive Damages under the Connecticut Unfair Trade Practices Act, Conn. Gen.Stat. § 42–110a et seq.  (2009) (CUTPA) and Plaintiff's Motion for Costs, Attorneys Fees and Prejudgment Interest.

On April 7, 2010, the court issued a memorandum of decision concerning plaintiff's motion for punitive damages, attorneys fees, prejudgment interest and costs, granting the motion for statutory costs and denying the motion as to the remaining requests.   The court received notice of filing of an amended appeal on April 21, 2010 from the Appellate Court clerk.   On April 30, 2010, plaintiff filed a motion to reargue to which defendants objected on May 7, 2010.   Unfortunately, this court did not become aware of said pleadings until mid April 2011.   As of September 1, 2009 the trial judge had been reassigned to juvenile matters in a different judicial district and thereafter reassigned again in September 2010 following closure of the court facility.   Upon review of the file, including Notice of Supplemental Authority filed by plaintiff on April 6, 2011, the court granted the plaintiff's motion to reargue the court's decision regarding punitive damages, attorneys fees, prejudgment interest and costs.   The parties appeared on August 1, 2011 at a hearing for this purpose.   The court hereby issues the following decision.   The court has prepared a chronological list of the post-decision pleadings which it reviewed in addition to the materials submitted by the plaintiff during the August 1, 2011 argument.   This list is appended to the court's decision herein.

II. Punitive Damages

First, plaintiff seeks reconsideration of the court's refusal to award punitive damages.   Plaintiff compiled a twenty-item list entitled “Misrepresentations” categorized by subject, e.g. software purchase, hardware, scanner and defective software to highlight the court's findings in support of its demand for punitive damages.   This list was derived from the factual findings by the court in its Memorandum of Decision.   The court has reviewed the record and relevant caselaw cited by the party for support of their positions on the issue of punitive damages.   Plaintiff has quoted the court's findings in its decision arguing that those factual findings mandate award of punitive damages.   The court disagrees.

Awarding punitive damages and attorneys fees under CUTPA is discretionary.   In order to award punitive or exemplary damages, evidence must reveal reckless indifference to the rights of others or an intentional and wanton violation of those rights.  Collins v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967).  “In fact, in the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injuries, evil motive and violence.”  Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983), citing Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966).

Plaintiff failed to establish a basis for applying such a finding to the sales representatives who promoted the Vital Works EMR and PM software program to Western Dermatology.   Some of the problems Western Dermatology experienced were due to the fact that the Vital Works software system was sold while still in a beta phase.   Others related to the software program's inability to adapt to Western Dermatology's combined medical records and business needs.   Not only did Western Dermatology operate at two separate sites, it also conducted two separate businesses, a medical dermatology practice and skin spa service.   These two business operations had separate record keeping, reimbursement, scheduling and regulatory requirements.   While it is true that plaintiff did not adequately communicate the technology demands of its business model, Vital Works did not make even minimal effort to evaluate whether the product it sold to plaintiff met its needs or to address the application issues as they occurred.   Scheduling, records and billing for this dual operation was extremely complex.   Nonetheless, Vital Works' lack of understanding of its own product and promotion and sale of an immature, if not beta, version of the program and its attitude toward its customer contributed to its overall failure to provide a satisfactory product.

It is clear from plaintiff's compilation of the trial court's factual findings drawn directly from the memorandum of decision that defendants, in particular, Vital Works, Inc. encouraged plaintiff to purchase a product which did not meet its administrative and medical practice needs, that the product, if not actually a beta version, had not reached a product quality development stage to be marketed to users such as plaintiff.   Defendant Cerner continued with the same product and employees.   The defendants' attitude toward their customers was at times indifferent and arrogant.   The irony of the evidence adduced at trial occurred when Vital Works' own computer software program development expert was unable to successfully demonstrate how either the PM and EMR systems were intended to operate, much less how they could be successfully integrated.   The court found that this conduct violated the Connecticut Unfair Trade Practice Act. This conduct did not, however, meet the test set by the Connecticut Supreme which is required to warrant punitive damages.

The findings and conclusions of the court on the issue of punitive damages stand.

III. Prejudgment Interest

Second, plaintiff urges reconsideration of the court's decision refusing to award prejudgment interest.   The court notes that plaintiff has filed Notice of Supplement Authority filed by the plaintiff April 6, 2011 to which was attached a copy of the case Sosin v. Sosin, 300 Conn. 205 (2011) as authoritative to arguments which appear at pages 17–18 of its April 27, 2010 Motion to Reargue.   In Sosin, the Supreme Court provided a detailed history of caselaw and analysis of the circumstances in which a trial court may exercise discretion to award prejudgment interest pursuant to Conn. Gen.Stat. 37–3a for wrongful detention of money after it becomes payable.   This court has reviewed the Sosin decision which affirmed the order of prejudgment interest under the facts of that particular case.   The case at bar is distinguishable in that it does not involve wrongful detention of money after it became due.   For this reason, the court concludes that the plaintiff has not presented any basis for the court to modify its decision on the issue of prejudgment interest.

IV. CUTPA—Attorneys Fees

Plaintiff's Motion to Reargue the court's decision denying its Request for Attorneys Fees is based on its assertion that the court erroneously interpreted P.B. 11–21 and that having found that the defendant's conduct violated CUTPA the court misinterpreted C.G.S. § 42a–110g by failure to award attorneys fees.   Consideration of this issue requires first, analysis of the timeliness of the request for attorneys fees.   In consideration of the plaintiff's motion to reargue the issue of attorneys fees and defendants' objections thereto the court has conducted a detailed review of the events of record in this case including all post-trial materials filed by the parties and hearings.   The previously described chronology of the pleadings and court proceedings related to post-trial motions filed on this issue, provides the procedural framework for the court's decision herein.

1. Timeliness of Motion for Attorneys Fees

The September 1, 2009 Memorandum of Decision did not include a decision on the issue of punitive damages or prejudgment interest.   At that point, plaintiff also had not moved for an award of attorneys fees or costs.   On September 10 and September 18, 2009, defendants filed Motions to Reargue the September 1, 2009 decision.   As a result of the motions to reargue filed by the defendants the decision was not “final.”   The parties are not bound by appellate time limits until the court issues its decision on the motion to reargue.   In this case, the court conducted a hearing on the motion to reargue on October 26, 2009 and issued its decision on February 23, 2010.   On February 24, 2010, the court filed a corrected decision which corrected typographical errors and did not contain any substantive changes.   This decision was a final decision for the purpose of timing the parties' appellate rights.   The appellate court sent a copy of a notice of amended appeal to the trial judge.   This notice indicated that an amended appeal had been filed appealing the September 1, 2009 and February, 23–24, 2010 decisions on April 21, 2010.   It is evident from this review of the history of the pleadings that plaintiff preserved its right of appeal by timely filing according to the rules of practice.   In addition, upon review, the court agrees with plaintiff's argument that Traystman, Coric & Keramides, P.C. v. Daigle, 282 Conn. 418, 922 A.2d 1056 (2007) is not directly applicable to the facts of this case.   The court modifies its prior order to disregard reference to or reliance on Traystman, supra, for purposes of its decision on the timeliness of plaintiff's motion for attorneys fees.   Review of this file indicates that plaintiff's motion for attorneys fees was timely under Connecticut law.

Having decided that plaintiff's motion for attorneys fees was timely, the court must address the substance of the motion.   Plaintiff filed its motion for attorneys fees on November 23, 2009.   Defendants filed objections to the motion on December 8, 2009.   The court conducted a hearing on December 8, 2009, at which it took evidence on the amount of attorneys fees plaintiff incurred.   It also heard evidence on the reasonableness of these fees from Attorney James Riley.   Thereafter the court issued the April 7, 2010 decision which found, inter alia, plaintiff's motion for attorneys fees to be time barred.   As indicated above, review of the file in this case and the applicable law indicates that P.B. Sec. 11–21 does not bar consideration of plaintiff's claim for attorneys fees as it was timely filed.

2. Scope of Service for which Attorneys Fees May Be Awarded Under CUTPA

Following determination that plaintiffs' claim for attorneys fees is not time barred and that Conn. Gen.Stat. § 42–150bb is inapplicable as a bar as well, the court turns to the final paragraph of Section II of its April 7, 2010 decision in which it stated that failure to separate the legal services performed to establish plaintiffs' CUTPA claim deprives the court of information essential to making a fair and reasonable award for statutorily authorized attorneys fees.

General Statutes § 41–110g(d) provides in relevant part that “[i]n any action brought by a person [pursuant to CUTPA], the court may award ․ costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery ․” An award of attorneys fees is not a matter of right.   Whether any award is to be made and the amount thereof lies within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case.   Additionally, the amount of attorneys fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery.  Thorsen v. Durkin Development, LLC., 129 Conn.App. 68, pg. 79 (2011).   Furthermore, CUTPA proscribes unfair or deceptive acts or practices done in connection with the conduct of a trade or business.  “The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices ․ In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for an award of attorneys fees and costs.”  Freeman v. Alamo Management Company, 24 Conn.App. 124, 133 (1991).

Subsequent to the court's April 7, 2010 decision, the Appellate Court decided Taylor v. King, 121 Conn.App. 105 (2010).   In that case, the court reiterated that the decision to award attorneys fees under CUTPA is discretionary pursuant to General Statutes § 42–11g(a) and (d).  Of particular relevance to this case is the holding by the Appellate Court in Taylor that reliance on the same facts to prove non CUTPA claims such as breach of contract, fraud, breach of warranty and misrepresentation does not preclude award of attorneys fees if the CUTPA claim was established.   The court stated preliminarily that, “The exercise of judicial discretion standard applies both to the court's determination of the factual predicate justifying the award and to the amount of fees awarded.”  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252–53, 828 A.2d 64 (2003).   It then summarized the positions of the parties as follows:

The defendant argues that the court abused its discretion by awarding the plaintiff attorneys fees under § 42–110g not only for services provided on the CUTPA claim but for all services provided on the case.   He cites Jacques All Trades Corp. v. Brown, 57 Conn.App. 189, 200, 752 A.2d 1098 (2000), for the proposition that “[i]n the absence of abuse of discretion, the court can award attorneys fees under CUTPA only for those expenses that were related to the prosecution of a CUTPA claim.”   The plaintiff argues that a case decided subsequent to Jacques All Trades Corp. holds that when the facts underlying the CUTPA claim are indistinguishable from those facts relating to other claims, “ § 42–110g(d) encompasses claims related to the prosecution of a CUTPA claim ․ not only one claim explicitly labeled as a CUTPA claim.”  Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 735, 890 A.2d 113 (2006).

Addressing the issue of attorneys fees, the court stated:  “As in Heller, the plaintiff's claims of breach of contract, breach of warranty, negligent infliction of emotional distress and violation of the [act]—CUTPA depend on the same facts and circumstances.   The court finds that apportioning the attorneys fees based on the [act]—CUTPA claim alone would be impermissibly difficult, as the fact and circumstances which gave rise to the other claims all related to the [act]—CUTPA violations, and all of [the] plaintiff's claims arose out of the home improvement activities performed by the defendant, as defined by the [act].”   We conclude that the court did not abuse its discretion but, rather, correctly applied the law as stated in Heller to the facts of this case and arrived at a reasonable conclusion.  Taylor v. King, 121 Conn.App. 105, 131–32 (2010).   This decision replaces the restrictive view of Jacques All Trade Corp. v. Brown, supra, with a more flexible approach which requires the court to assess the relationship of the facts asserted to the claim of CUTPA violation.   This approach is consistent with the language and legislative intent of CUTPA and more clearly reflects the reality of consumer transactions, including the facts of this case.

The court finds the reliance by the Taylor court on Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 890 A.2d 113 (2006) and the analysis of both courts to be persuasive.   Although plaintiff previously cited Heller v. D.W. Fish Realty Co. in its memorandum, review of the court's April 7, 2010 decision indicates that the court relied on its finding of the procedural bar of untimely filing and this did not reach the merits of the motion.   This conclusion pre-empted consideration of Heller v. D.W. Fish Realty Co. at that time.   Having determined that plaintiff's claim for attorneys fees in this case was in fact timely, and that the ruling in Heller v. D.W. Fish Realty Co., supra, is controlling, the court considers the substantive claims of the parties as to the predicate issue of entitlement to attorneys fees and if so, the amount to be awarded.

Following the analysis of the court in Taylor v. King, supra, this court has reconsidered its denial of plaintiff's claim for attorneys fees.   The court maintains its factual findings as stated in the original decision, i.e., that it is not possible to separate the evidence presented for the different counts of the complaint.   In fact, it is clear that the plaintiff has asserted that the entire course of the defendants' conduct regarding the promotion and sale of its defective EMR/PM software system the subsequent hardware, scanner and customer support complaints are all interrelated and each is integral to the CUTPA claim.   Simply put, the plaintiff presented a single transaction which began with a false representation as to the timing of Vital Works' decision to “sunset” the Kiron software and continued with marketing and sale of the inadequately developed and unsupported Intuition and PM software program first by Vital Works and later by Cerner.   These facts transpired from 2003 until at least 2006.   Plaintiff alleged that all of these facts gave rise to its claims of breach of warranty, breach of contract, fraud and misrepresentation.   It further asserted that at least some of these facts fell under the umbrella of plaintiff's CUTPA claim.   Consistent with the court's previous conclusion, prosecution of this CUTPA claim cannot be compartmentalized.   The court is bound to follow the law of this state as articulated in Taylor v. King. Therefore, the fact that plaintiff's claims are interrelated factually and legally does not prevent recovery of attorneys fees.   Plaintiff is correct that the law does not require plaintiff's attorneys to parse out their efforts and accompanying fees among causes of action where as in this case, plaintiff's claims all arise out of the same set of operative facts.

3. Reasonable Attorneys Fees

The court is mindful that it did not render a decision in favor of plaintiff on all counts.   Subsequent to the decision in Johnson v. Georgia Highway Express, Inc., supra, but prior to Steiger v. J.S. Builders Inc., supra, the United States Supreme Court, noting the factors enumerated in Johnson, faced the question of the relationship of results obtained to an award of attorneys fees.   See, Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).   The Hensley court determined that where a party succeeded on only some of his claims for relief, a court must answer the question whether the failed claims were related or unrelated to the successful claims.   The Hensley court concluded, “Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorneys fees reduced simply because the district court did not adopt each contention raised.”  Id., 440.   The Connecticut Supreme Court has cited the rationale of Hensley with approval in upholding a trial court's rejection of contention that because a plaintiff had won on only three of five related counts, two-fifths of the fees should not be awarded.  Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 195, 510 A.2d 972 (1986);  see also Schnabel v. Tyler, 32 Conn.App. 704, 630 A.2d 1361 (1993).

Plaintiff asserted six causes of action breach of contract, breach of express and implied warranty, fraud, negligent misrepresentation, unjust enrichment and CUTPA.   As stated above, the majority of the evidence presented related to the plaintiff's claim of CUTPA violations which occurred over approximately eighteen months.   As presented at trial the facts constituted a continuing transaction.   The court applied these facts to the legal theories represented by the various claims.   As a result, many of the facts which plaintiff presented applied to multiple counts, including CUTPA.   In some cases, such as the fraud claim, the same facts which the court found to constitute a violation of CUTPA by the evidentiary standard of a fair preponderance, did not satisfy the clear and convincing standard for a finding of fraud.   Similarly, the fact that the court did not find defendants' conduct culpable for the purpose of awarding punitive damages does not undermine plaintiff's entitlement to attorneys fees required to present those same facts to the court.   Although there may be cases in which a court finds punitive damages warranted as well as award of attorneys fees under CUTPA, the fact that the court did not find that plaintiff met the legal standard for punitive damages does not preclude the award of attorneys fees under CUTPA in this case.

In many cases the nature of a claim for breach of contract is separate and distinct from the CUTPA claim.   That was not so in this case.   From the initial stages of Vital Works' solicitation and sale of the subject software through the failed training and customer support, the lack of quality control and product development and fundamental product defects, along with the refusal to acknowledge and correct by both defendants every phase of their conduct is were so interconnected as to be incapable of separation.   It was clear that plaintiff relied on the defendants to advise it of a software product that would meet its needs, train its employees and provide ongoing technical support.   As a result, the allegations and evidence as to liability under theories of breach of contract, CUTPA and misrepresentation were inextricably related.   In fact, plaintiff's CUTPA claims, although sometimes cast as breach of contract, misrepresentation or fraud, formed the overarching theme for its case.   Having determined that plaintiff is entitled to an award of attorneys fees, the court must consider the reasonableness of the fee award.

“The initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.   The courts may then adjust this lodestar calculation by other factors.”  (Internal quotation marks omitted;  citations omitted.)   Laudano v. New Haven, supra, 58 Conn.App. At 822, 755 A.2d 907.   In adjusting the lodestar calculation, the court should “exclude from this initial fee calculation hours that were not ‘reasonably expended;’ “ (citation omitted) Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983);  and the court should also increase or decrease the fee calculation by considering the full panoply of the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).   See Laudano v. New Haven, supra, 58 Conn.App. At 822–23, 755 A.2d 907.   Connecticut courts have rejected the lodestar calculation when considering attorneys fees to award under CUTPA.

CUTPA itself requires that any attorneys fees awarded must be “reasonable” and “based on the work reasonably performed by an attorney.”  General Statutes § 42–110g(d).  The Connecticut Appellate Court has held that the factors set out in the decision of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) should be applied to determine the reasonableness of fees.  Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38, 663 A.2d 432 (1955).   These factors are:  (1) the time and labor required;  (2) the novelty and difficulty of the questions;  (3) the skill requisite to perform the legal service properly;  (4) the preclusion of other employment by the attorney due to acceptance of the case;  (5) the customary fee for similar work in the community;  (6) whether the fee is fixed or contingent;  (7) time limitations imposed by the client or the circumstances;  (8) the amount involved and results obtained;  (9) the experience, reputation and ability of the attorneys;  (10) the “undesirability” of the case;  (11) the nature and length of the professional relationship with the client;  and (12) awards in similar cases.

The court concludes that the approach by the Supreme Court in Hensley v. Eckerhart, supra, has been adopted in Connecticut law and will apply it as appropriate to this case, with the caveat that CUTPA requires a fee award to be based on work performed and not on the amount recovered.   In making its determination on this fee application the court will consider all twelve of the Johnson factors although as the United States Supreme Court noted, many of these individual factors “usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.”   Hensley, supra, 461 U.S. 434 n.9.

The court has reviewed the affidavits of attorneys fees filed by attorneys Lynn and Babbitt in light of the aforementioned Johnson court factors.   In particular, the court finds factors 1, 2, 3, 5, 9 and 11 of significance in its assessment of reasonable attorneys fees in this case.

Plaintiff requests an award of attorneys fees in the total amount of $635,332.93.   An exhibit to these affidavits includes a computer generated schedule of attorneys time records and the disbursements.   The two attorneys responsible for the case are Attorney Phyllis Lynn, a senior partner in Yelson, Lynn, Allen & Wosick, P.C. the Albuquerque, New Mexico law firm which has a long standing client relationship with plaintiff and Attorney Bradley Babbitt of Robinson & Cole, LLP who served as local counsel in the litigation, as required by Connecticut rules of practice.   Attorneys from these firms charged $513,187.57 and $122,145.56 respectively for work performed in this case.   Plaintiff presented testimony from attorney James Riley of the law firm of Whitman Breed Abbott and Morgan to testify as to the reasonableness of the fees.   The electronic file in this case lists over 300 entries many of which required briefing argument and evidentiary hearings.   In general, the court finds that the hours spent prosecuting this matter through ten days of trial, extensive pretrial motions and arguments on legal issues and several discovery controversies were warranted.   In significant part, the fees incurred in this case were due to the complex subject matter and highly contested nature of the controversy.   None the less, the court is bound to review the claimed fees as to their reasonableness applying the so called Johnson factors to the fees requested in this case.

The court agrees with the plaintiff that its efforts, as represented by its litigation expenses, are consistent with the unique policy of CUTPA to enable private attorneys general because the plaintiff's efforts succeeded in demonstrating that it was harmed by the defendants' unfair and deceptive conduct.   Therefore, in applying the Johnson court factors and in exercising its discretion under CUTPA, a court may include as part of the attorney fee award expenses that are associated with non-CUTPA or unsuccessful claims when all of these claims are related, meaning that they are premised on essentially the same transactions or when their facts are inextricably connected or intertwined.   See Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 735–36, 890 A.2d 113 (2006).   Consequently, although CUTPA only authorizes a plaintiff to recover attorney fees if the plaintiff prevails on its CUTPA claim, there is no automatic or per se rule that attorney fees must be reduced if the plaintiff fails to prevail on the entirety of its complaint.   Cf. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 194, 510 A.2d 972 (2000).

The court hereby reverses its previous ruling denying attorneys fees.   In exercising its discretion to award attorney fees and costs, the court's ultimate task is to proceed “in conformity with the spirit of the law and in a manner to serve and not to impede or defeat the ends of substantial justice.”   (Citation omitted.)  Thames River Recycling, Inc. v. Gallo, supra, 50 Conn.App. At 800, 720 A.2d 242.   With this task in mind, and after careful consideration of the totality of factors bearing on this determination, the court reduces the lodestar amount and awards attorney fees as explained below.

The foregoing conclusions do not preclude consideration of the reasonableness of the fees as requested.   In addition to opposing award of attorneys fees because plaintiff did not distinguish the work performed on non-CUTPA aspects of the case from its CUTPA claim, defendants also objected to the reasonableness of plaintiff's claim for attorneys fees with respect to a) billing for travel time, b) block billing, c) duplication in effort and overstaffing.

a) Travel charges.   Plaintiff's billing records reflect charges of $86,944.50 by New Mexico counsel and $9,780 by Connecticut counsel for travel time.   Defendant cited several state and federal cases which adopt a practice of reducing the amount allowed by a court for counsel's travel time by fifty percent.   This approach meets the reasonableness test of the statute.   Accordingly the court will reduce the amount of awarded fee in this case by one-half to reflect the court ordered adjustment for fees related to counsel's travel time:

Jenson, Lynn, Allen & Wosick, P.C. $43,472.25

Robinson & Cole, P.C. $4,890.00

b) Block billing.   Here the court agrees as well with defendant's argument that the practice adopted by local counsel prevented defendants and the court from determining how much time was devoted to a specific task.   Upon review of the records submitted, the court finds that a ten percent reduction in local counsel's billing charge due to block billing is reasonable.

c) Duplication in effort and overstaffing

d) Local counsel/lead counsel redundancy

The court will next address the above objections jointly.   Defendants claim that the billing records by plaintiff's New Mexico and Connecticut counsel also reflect duplication and overstaffing, noting plaintiff's local counsel, a senior partner, billed his full hourly rate for attendance at trial when much of local counsel's role at trial, on all but one day, involved keeping track of and operating the electronic document system for trial exhibits resulting in excessive, redundant, and unnecessary fees.   In addition, plaintiff's lead counsel and local counsel identified in its bills for attorneys fees numerous occasions involving internal conferencing, emails, telephones calls, and other communications between the two law firms for various purposes resulting in excessive, redundant, or otherwise unnecessary billing.   Some redundancy is inescapable especially where out of state lead counsel and local counsel are involved and matters of trial preparation require coordination by local and lead counsel.   However, based on review the billing records submitted in this case, the court concludes that a reduction of twenty percent of the fees each charged by lead and local counsel.   It should be clear that the reductions which the court has ordered do not reflect criticism by the court of counsel's substantive work or billing practice.   The reduction is the result of applying principles of reasonableness and analysis by other trial courts faced with the issue of the amount of attorneys fees to award.   The foregoing analysis results in a 30% reduction of fees to Robinson & Cole and 20% reduction in fees to Jenson, Lynn, Allen & Wosick, P.C.

The following is the calculation of the attorneys fees awarded in this case based on the above analysis:

YLAW, P.C. $513,187.57

-102,637.51 —less 20%

$410,550.06—fee award

R & C, P.C. $122,145.56

36,643.67 —less 30%

$85,501.89—fee awarded

Total Attorneys fees:  $496,051.95

4. Costs

Plaintiff also sought reargument on the court's omission of an award for costs related to court reporting, travel and expert witness expenses.   This determination was consistent with the court's previous analysis and ruling that the plaintiff was not entitled to recover attorneys fees because it did not sufficiently distinguish between the fees incurred for CUTPA and non-CUTPA claims.   Having ruled following reargument that Connecticut case law does not bar the award of attorneys fees, analysis of plaintiff's request for additional fees as may be authorized by Connecticut General Statute 42–110g(d) is warranted.   Said statute provides, “in any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed and not on the amount of the recovery.”   Like the award of attorneys fees under CUTPA, the award of non-statutory costs is a matter of judicial discretion.   Plaintiff has requested award of expert fees in the amount of $89,873.10 for the cost of testimony by its software expert Steven Kursh arguing that the court placed significant weight in its Memorandum of Decision on Dr. Kursh's analysis.   Indeed, plaintiff is correct in this assertion.   It was apparent at the trial that without Dr. Kursh's testimony, plaintiff would not have been able to explain what the software was intended to do, how it should have functioned and why it was unacceptable for defendant to market and sell an insufficiently developed, or “beta,” version to the plaintiff in this case.   Dr. Kursh presented a detailed analysis which demonstrated that explained the programming bugs were far more serious than defendants themselves acknowledged.   While the defendants persisted in their criticism of the plaintiff as not sufficiently committed to computer training to learn to use the software effectively, Dr. Kursh established that the source of the plaintiff's problems was not training related but rather was due to the defective software programs and that no amount of training would correct this.   The need for expert testimony by a qualified software specialist was amplified by the failure of defendant's own in-house computer program designer, Jim Kasper, to explain or even demonstrate the program in the courtroom.   Plaintiff may have been able to establish that the software program didn't work in support of its common-law contractual and warranty claims without an expert in computer software design, but it was Dr. Kursh's testimony which enabled plaintiff to satisfy the additional standards required by statute for the court to find a violation of the Connecticut Unfair Trade Practice Act. The decision to award expert witness fees in this case is still governed by considerations of reasonableness.   The court finds that plaintiff is entitled to reimbursement for fees charged by Dr. Kursh, in the amount of $45,000.00.   Successful prosecution of a CUTPA claim does not entitle plaintiff to reimbursement for all expert fees and expenses of litigation, however, the courts have taken a narrower position regarding reimbursement of fees for testimony by economists.   It was clearly plaintiff's prerogative to present testimony as to the damage to its business though Dr. Henry South.   However, courts have consistently refused to expand the scope of award for expert fees to include the costs of economist's testimony.

The court denies the request for reimbursement of fees submitted by plaintiff for the testimony of Dr. Henry South, Randy Randon and Perry Pintzow.   Finally, the court agrees that plaintiff is not entitled to reimbursement of travel expenses or other expenses which are not specifically authorized by statute, and are thus, in the exercise of the court's discretion, not within the category of allowable costs such as to warrant award in the exercise of the court's discretion under CUTPA.

BY THE COURT

SOMMER, J.

Chronology of Supplement Relevant Pleadings and Events

198.00 09/01/09 Trial Court Decision (MOD).

09/04/09 Plaintiff requested by letter hearing on the issue of attorneys fees

200.0 9/10/09

201.0 9/18/09 Defendant's Motions to Reargue trial court decision (MOD).

10/26/09 Argument/Hearing on Motion to Reargue, plaintiff stated it would file for attorneys fees.

201.10 11/13/09 Plaintiffs' Notice of Application for Prejudgment Remedy.

201.15 11/18/09 Plaintiffs' Motion for Punitive Damages.

201.20 11/23/09 Plaintiffs' Motion for Costs, Attorneys Fees and Prejudgment Interest.

202.00 12/02/09 Defendant's Motion for Continuance of hearing on Motion for Punitive Damages, Interest, Fees and Costs on ground that Motion to Reargue is subjudice.

205.00 12/03/09 Motions for Continuance of Prejudgment Remedy Hearing Cover sheet to 12/04/09 Motion.

207.00 12/08/09 Defendants' Objection by both Defendants to Plaintiffs' Motion for Attorneys Fees.

*During the week from December 2 until December 9, 2009, the parties filed 22 items consisting of motions, exhibits, objections and memoranda of law.

12/08/09 Hearing on Application for PJR, Motion for punitive damages, Attorneys fees, interest and costs.

224.00 02/24/10 Memorandum Re Motions to Reargue court's decision relating to CUTPA, warranty, successor liability and compensatory damages.

225.00 3/12/10 Vital Works appeal filed.

226.00 3/12/10 Cerner appeal filed.

226.10 04/07/10 Order Re Motion for Attorneys Fees, punitive damages, Prejudgment interest and costs.

228.00 04/21/10 Amended Appeal

229.00 04/30/10 Motion to Reargue

2.30.00,

231.00 05/07/10 Objections to Motion to Reargue

Sommer, Mary E., J.