While I do not make it a practice to sue the police, officers do make mistakes and sometimes abuse the law. When they do, they should be held accountable. Similarly, when lawyers make mistakes or abuse the law, they should be held accountable as well. Just like bad police officers, it only takes one to reflect poorly on the entire profession. These DOJ lawyers have finally been called out for their unprofessional conduct. Their employer should take note of this decision and hold them accountable. This behavior reflects poorly on our entire profession.

Here is the opinion:

individual capacity; THE STATE OF

McShane, Judge:

Case No. 6:14-cv-00907-MC


Plaintiff Justin Wilkens seeks attorney fees  in  the amount  of  $343,717.36 following a jury  trial and award totaling $181,169.62. The  jury  awarded Plaintiff$19,749.05 in economic damages, $100,000.00 in noneconomic damages, and $50,000.00 in punitive damages based on an excessive force claim brought under 42 U.S.C. §1983. ECF No. 135. The  jury  also awarded Plaintiff $11,420.57 based on a negligence claim against Defendant State  of  Oregon.  Id.
Defendants concede that Plaintiff is the prevailing party, but dispute the amount that should be awarded.1  As  the prevailing party, Plaintiff may properly recover reasonable costs and fees pursuant to 42 U.S.C.  §  1988(b). For the reasons below, the court GRANTS  Plaintiffs  fee petition, ECF No. 135, in PART, and awards Plaintiff the reduced amount  of  $318,689.48  in attorney fees and the reduced amount  of  $17,141.39 for his costs.


The Ninth Circuit applies the “lodestar” method for calculating attorney fees.  Fischer  v.SJB-P.  D.  Inc.,  214 F.3d 1115, 1119 (9th Cir. 2000). That calculation multiplies a reasonable hourly rate by the number  of  hours reasonably expended in the litigation.  Id.  (citing  Hensley  v. Eckerhart,  461 U.S. 424, 433,  103  S.  Ct. 1933 (1983). The court then decides whether to enhance or reduce the lodestar figure by evaluating a set  of  factors.  Moreno  v.  City  of Sacramento,  534 F.3d 1106, 1111 (9th Cir. 2008). A “strong presumption” exists that the lodestar figure represents a “reasonable fee,” and it should therefore only be enhanced or reduced in “rare and exceptional cases.”  Pennsylvania  v.  Del. Valley Citizens’ Council for Clean Air,  478 U.S. 546, 565, 106  S.  Ct. 3088, 92  L.  Ed.  2d  439 (1986).

1  Confoundingly, Defendants dispute that Plaintiff prevailed on his negligence claim against Defendant State  ofOregon, stating that “only one  of  two defendants was included on the verdict form, presumably meaning the State  ofOregon was dismissed from the case.” Def:’s Response, 2, ECF No. 143. As Plaintiff properly points out, “the Stateof  Oregon was only removed as a named defendant on the verdict form in order to alleviate potential confusion withthe  jury  deliberations.”  Pl.’s  Reply, 3, ECF No. 149. The court discussed this matter with both parties prior toinstructions and defense counsel agreed that the State  of  Oregon would be removed from the verdict form eventhough any judgment on Wilken’s negligence would be a judgement against the State Defendant. Plaintiff is theprevailing party on both his excessive force claim and his negligence claim,  see  ECF No. 130, despite Defendants’deliberate misinterpretation  of  the verdict form.


I.  Motion for Attorney Fees

The parties’ briefs surrounding  Plaintiffs  petition for attorney fees raise a host  of  issues and minor disputes. In determining the reasonableness  of  fees, the court is not required to respond to each specific objection. Gates  v.  Deukmajian, 987 F.2d 1392, 1400 (9th Cir. 1992).Rather, all that is required is a “concise but clear” explanation  of  reasons for the fee award.  Id.

A. Reasonable Hourly Rates

Courts apply prevailing market rates for purposes  of§  1988 fee determinations. Blum  v.Stenson, 465 U.S. 886, 895, n.11, 104 S. Ct. 1541 (1984). Prevailing market rates are those that the local legal market would pay for a case  of  this nature to a lawyer  of  comparable skill,experience, and reputation to a plaintiffs counsel  of  record.  Id.  at 897. Accordingly, courts  in this District have determined that they will use the Oregon State Bar 2012 Economic Survey as their initial benchmark when reviewing fee petitions.2  Exceptional circumstances may be taken into account for an enhancement  of  the lodestar figure, including when the prevailing rate does not account for the true market value  of  an attorney  or  when litigation includes extraordinary expenses or is exceptionally protracted. Perdue  v.  Kenny A. ex rel.  Winn,  559 U.S. 542, 130  S.Ct. 1662, 1674-75, 176  L.  Ed.  2d  494 (2010).

Eugene, Oregon attorneys Lauren Regan and Marianne Dugan both seek an hourly rate  of$375. Ms. Regan and Ms. Dugan fall in the “16-20 Years” and “21-30 Years” experience rangeof  the Economic Survey’s billing analysis, respectively. ECF Nos. 137, 139. Eugene, Oregon attorney Cooper Brinson seeks an hourly rate  of  $195. Mr. Brinson falls  in  the “0-3 Years”experience range. ECF No. 138.

2  The economic survey is available at https://www.osbar.org/ _ docs/resources/Econsurveys/12EconomicSurvey.pdf.I note that Plaintiffs counsel point to a 2008 survey that is specific to the Civil Rights Section  of  the Oregon StateBar, but I do not apply that survey due to the fact that this District has opted to apply the 2012 Economic Survey,  see https://www.ord.uscomis.gov/index.php/court-info/court-policies/fee-petitions. Further, I note that the 2008 survey’s 20.3% response rate (55 persons of 271), wide range  of  hourly rates, and lack  of  geographical indicators render it unreliable for the purposes  of  the prevailing market rate inquiry.  See  ECF No. 137-3

Defendants object and assert that hourly rates for all three attorneys exceed reasonable rates for counsel in the Lower Willamette Valley area  of  the Economic Survey. According to the Economic Survey, the median hourly billing rate for plaintiff-side civil litigation attorneys  in private practice in the area is $225, while the  25th  percentile is $175 and the  75th  percentile is$275. The prevailing market rates for Plaintiff’s attorneys based  on  their years  of  experience are:

25th Percentile Median 75th Percentile/td> 95th Percentile
Marianne Dugan $225 $250 $300 $320
Lauren Regan $179 $210 $228 $255
Cooner Brinson $113 $150 $169 $175

Plaintiff’s attorneys cite a number of reasons for their requested hourly rates, including the difficulty  of  this case, the specialization required, and their expertise in the subject matter  of this litigation. I have considered all  of  Plaintiff’s assertions in  support  of  and Defendants’ objections to the requests for increased hourly rates. After careful consideration, I apply the  95th percentile hourly rate found  by  the Oregon State Bar 2012 Economic Survey for Ms. Dugan and Mr. Brinson. I adjust these rates for inflation to an hourly rate of$325.71 for Ms. Dugan and$178.12 for Mr. Brinson. 3

With regard to Ms. Regan, the lead counsel in this case, the prevailing market rates do not adequately address her level  of  experience, her reputation in the state as a civil rights attorney, the risks associated with civil rights litigation, the lack  of  adequately trained and available attorneys in the Eugene area willing to take on this work, and the unique difficulties presented in the litigation  of  this case. I find her requested hourly rate to be reasonable after considering all  of  these factors.

3  This adjustment was performed using the Bureau  of  Labor Statistics Consumer Price Index (“CPI”) Inflation Calculator, available at http://www.bls.gov/data/inflation_calculator.htm. That calculator uses the average CPI for a given calendar year using the latest monthly index value to represents changes in prices  of  all goods and services purchased for consumption by urban households.

Hours Rate Fees
Lauren Regan 749.20 $375.00 $280,950.00
Cooper Brinson 183.57 $178.12 $32,697.49
Marianne Dugan 15.48 $325.71 $5,041.99

Total Fees $318,689.48

II.  Bill  of  Costs

Plaintiffs Bill  of  Costs itemizes $16,496.36 in general trial expenses and expert fees and$4,805.00 in fee declarant expenses, for a total  of  $21,201.36.

Defendants object to (1) $80 witness fees for the Lane County  Sheriffs  Department for alack  of  explanation; (2) $10 ambulance account report for a lack  of  documentation; (3) $21.49 for trial materials from an office supply store for a lack  of  documentation and asserting that office supplies should be considered overhead; (4) $2,090.00 for Exam Works testimony costs for a lack  of  documentation, (5) $37.50 for Pacer research, asserting that this should be considered overhead; (6) expert fees, generally, assetiing  that§  1988 does not allow an award  of expert witness fees on  §  1983 claims; (7) $2,500.00 for “trial testimony fees” for Dr. Boespflug because he did not testify at trial; (8) $3,000.00 for “trial testimony fees” for Dr. Sheerin because he was not designated  as  an  expert and for lack  of  documentation; (9) $800.00 and $347.47 for”expert witness fees” for Gary Monteleone and Bill Cole, respectively, for lack  of documentation; (10) two separate fees of$1,675.00 and $1,237.50 in expert fees for Dr.Robertson for lack  of  documentation; and, finally, (11) $1,575.00 and $3,230.00 for “fee declarant/expert fees” for Ms. Middleton and Ms. Creighton, respectively, asserting that such fees are not recoverable.

A. General Objections

Upon careful consideration  of  Defendants’ objections and  Plaintiffs  cited reasons for seeking the relevant fees, I dismiss Defendants’ objections (1)-(5), (7), and (8).  See  Pl.’s Reply,3, ECF No. 149;  see also  id.  at  4,  n.1 (explaining the fee bases for Drs. Boespflug and Sheerin).B. Expert  Fees Regarding Defendants’ expe1i witness fee objections (6), (9), and (10), I turn back to Quesnoy  v.  Oregon,  which considered a petition seeking expert fees following a  plaintiffs successful  §  1983 claim. The relevant holding in  Quesnoy  reads:

In 1991, the Supreme Court held  that§  1988 does not authorize the shifting  of  expert witness fees to the losing party.  West Virginia  Univ.Hosp.,  Inc.  v.  Casey,  499 U.S.  83  (1991). After  Casey,  Congress amended§ 1988 to allow the court,  “in  its discretion,” to award expert witness fees  “in  any action or proceeding to enforce a provision  of  section 1981 or 1981a  of  this title.” 42 U.S.C. § 1988(c). This amendment does not include claims brought  under§  1983.  Ashker  v.  Sayer,  No. 05-03759CV, 2011  WL  825713, at *4 (N.D. Cal. Mar. 7, 2011);  Rtif.fv. County  ofKings,  700 F. Supp. 2d 1225, 1243 (E.D. Cal.  2010); Agster  v.  Maricopa County,  486 F. Supp.  2d  1005, 1019 (D. Ariz. 2007).  Thus,§  1988 does not allow an award  of  expert witness fees to plaintiff for prevailing  …  onher  §  1983 claim.

2012  WL  1155832, at *10 (citations updated).  I  agree with this analysis and the findings of  the various courts that have recognized the effect  of  Casey  and the subsequent amendment  to§  1988.  I  find that expert fees are not available to a prevailing plaintiff fora  §  1983 claim, and I accordingly reduce  Plaintiffs  Bill  of  Costs  by  those amounts a tissue in Defendants’ objections (9) and (10), which total $4,059.97.

C. Fee Declarant Fees

Finally, I dismiss Defendants’ objection (11) to the fees sought for the assistance of  Ms. Middleton and Ms. Creighton. The Ninth Circuit has held that counsel may”solicit the assistance  of  other lawyers in working on a case, however, and the time spent by all lawyers on a litigation can be billed so long as the hours claimed are not duplicative.”  Davis  v.  City  and  Cty.  of  San Francisco,  976 F.2d 1536, 1544 (9th Cir.1992). Nothing in the record before me indicates that the work  of  Ms. Creighton or Ms.Middleton was duplicative  of  Plaintiffs trial counsel.

Upon careful consideration  of  the record, I find that Ms. Middleton and Ms.Creighton acted as fee counsel, and that “time spent by counsel in establishing the right to a fee award is compensable,” and such compensability extends to situations in which a plaintiff hires “an additional lawyer to act as fee counsel.”  Davis,  976 F.2d at 1544.

D. Conclusion

Based on the above, Plaintiffs Bill  of  Costs is reduced to $17,141.39.


For the reasons stated above, Plaintiff’s Motion for Attorney Fees, ECF No. 135, is GRANTED in the reduced amount  of  $318,689.48, and Plaintiff’s Bill  of  Costs, ECF No. 135, is GRANTED in the reduced amount of$17,141.39.


Dated this  day  of  March, 2016.
Michael McShane                                                                                                                                                                               United States District Judge

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