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$500K in legal fees approved in bias case

court-fees_mainAlthough a Norfolk federal court gave a hearing-impaired plaintiff only $40,842 in back pay at the end of years of litigation and a two-week jury trial, the trial judge has awarded her legal team nearly a half-million dollars in attorney’s fees.

Despite reducing the fee award to less than half of the legal team’s requested fees, the court approved an hourly rate of $400 for the lead litigator.

The plaintiff, a physician’s assistant who worked for a U.S. Navy healthcare contractor, pursued the case on principle and won important legal points, according to the court. She persuaded the court that the Navy and the contractor were “joint employers” in her disability bias case, and also proved to a jury that a videophone was a “reasonable accommodation” for her disability.

The case, Crump v. U.S. Dep’t of Navy (VLW 017-3-144), may be a blueprint for future fee award requests in employment law cases in Norfolk federal court.

After making his own survey of attorney’s fee awards in recent Eastern District employment law cases and fee awards in other kinds of cases in the Norfolk Division, Norfolk U.S. District Judge Mark S. Davis awarded the plaintiff’s lawyers total fees of $493,721.72.

‘Nominal’ award

Plaintiff Summer Crump worked as a physician’s assistant at the Sewell’s Point Branch Medical Clinic in Norfolk, a U.S. Navy facility. Her suit under the Rehabilitation Act of 1973 alleged she suffers from bilateral profound deafness; she underwent surgery for a cochlear implant revision after her existing cochlear implants failed.

Prior to her scheduled return to work in June 2011, Crump requested installation of a video relay service as a superior means of patient communication, as compared to the TTY device offered by her employers.

Her case went to trial in February 2016 and ended with a verdict in Crump’s favor, finding that the Navy failed to provide her with a reasonable accommodation. The jury declined to award compensatory damages, but did award back pay.

The Navy acknowledged that Crump was a prevailing party, but said she was not entitled to attorney’s fees because of her “nominal” damage award, that was between 3 and 4 percent of the $1.2 million that Crump initially sought.

But Davis rejected the notion that Crump had won only a “trifling sum.”

Because the court’s award of back pay was designed to compensate Crump for her lost wages as a result of the Navy’s actions, she “obtained more than a mere nominal damage award,” Davis said.

“Plaintiff prevailed on significant issues throughout the litigation,” Davis said, such as the court’s summary judgment ruling to let a jury consider the reasonableness of TTY as an accommodation.

“Plaintiff’s victory served a public purpose in defining the responsibilities of joint employers to offer reasonable accommodation, which may be more than TTY, to medical professionals in similar health care facilities,” Davis wrote.

Hourly rates

The court approved hourly rates for the legal team ranging from $100-150 for paralegals and $235-375 for lawyers David Pearline, Deborah Collins and Melissa Picco, to $400 for lead litigator Ann Sullivan.

Davis said these rates were “appropriate for the novel and difficult questions raised in this specialized area of law” and favorable rulings Crump won along the way.  Sullivan and her team were entitled to a higher hourly rate, having taken the complex case on a contingent basis, only to have it consume much of the firm’s time.

A magistrate judge involved in the case described it as “one of the most thoroughly litigated ADA cases … ever seen in this court.”

“Counsel expected the case to progress more quickly, similar to other cases in the Eastern District of Virginia, but due to the Navy’s vigorous litigation regarding the significant legal and factual issues presented by the case, it took substantially longer than expected and cost counsel the opportunity to represent other paying clients,” Davis wrote.

Davis also discerned from Crump’s testimony that “she felt strongly that she was seeking to vindicate an important principle in employment disability discrimination law. Such devotion to principle by a client often results in greater challenges for counsel in contingent fee cases.”

Vague billing

Davis found fault with billing entries that were “vague” and lacking sufficient detail to identify the nature of the work performed. Such entries might pass muster on a bill to the client, the judge said, but were not enough to support a court’s fee award.

He also cited mathematical errors in some billing entries and some amount of overlap in the work done by plaintiff’s attorneys and paralegals.

On the other hand, he observed a certain parity in the staffing of the case. The Navy complained about the plaintiff billing 15.9 paralegal hours and 13.7 attorney hours to prepare for and attend the summary judgment hearing, but they brought three Navy lawyers and a lawyer for the co-defendant contractor, Davis noted.

From the court’s total lodestar figure of $1,097,159.38, it further reduced the award to adjust for the plaintiff’s relatively limited degree of success. Considering the gap between what the client sought and what she won, Davis said a 55 percent reduction in fees was appropriate.

The Crump case is the second significant legal win for a hearing-impaired plaintiff in recent months in the Eastern District of Virginia.

In January, an Alexandria federal judge said that a decision requiring a public school system to provide an American Sign Language interpreter for a deaf special education teacher was an apparent “high water mark” with respect to the accommodations school were required to provide deaf teachers.

In that case, Smith v. Loudoun County Public Schools (VLW 017-3-032), the court also rejected a claim by the defendant school system that the $310 the teacher won from the jury for her medical bills did not warrant an award of attorney’s fees. The court awarded a total of $91,320 in fees to two law firms.

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