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Major Fee Reduction Because of Whistleblower’s Conduct

August 13, 2019 | Posted in : Expenses / Costs, Fee Award, Fee Reduction, Fee Request

A recent Law 360 story by Bill Wichert, “Novartis Attys Get Reduced Fees Over Whistleblower’s Antics,” reports that a New Jersey state judge awarded fees and costs to Nukk-Freeman & Cerra PC and McCusker Anselmi Rosen & Carvelli PC as counsel to Novartis Pharmaceuticals Corp. based on a onetime executive's misconduct during a trial in her successful whistleblower suit. But the award was much less than the firms requested.  Superior Court Judge Louis S. Sceusi awarded a total of $8,466 to the two firms — less than a third of what they had been seeking — as a result of Min Amy Guo's "contemptuous, disruptive conduct" on three occasions, including when she purportedly told a defense witness in a restroom, "[s]ave your soul and tell the truth," court records show.

"Because plaintiff's actions disrupted the trial, they required defendant's attorneys to allocate trial and research time to respond and address these matters," Judge Sceusi said in his statement of reasons.  The two firms had sought about $32,000 in fees and costs with respect to Guo's misconduct, according to the judge's opinion.

That request was based on 4.6 hours each of trial attendance for lead attorneys John B. McCusker of McCusker Anselmi and Patricia Prezioso of Nukk-Freeman & Cerra, at $395 and $390 per hour, respectively; three hours for Novartis' trial technician and equipment rentals; and 110.57 hours for "research, production of written memorandum, and strategy," the opinion said.  The judge found that the hours and rates attributed to the trial attendance of McCusker and Prezioso were reasonable, citing the attorneys' "experience, reputation, and the complexity of the case."

"After each incident, the court recessed the jury, called counsel to sidebar or into chambers to discuss what happened and to air opinions of counsel on the remediation," Judge Sceusi said.  "This court agrees that both counsels' assessment of the time misdirected on these matters is reasonable and quite conservative."  The judge awarded $1,817 and $1,794, respectively, for McCusker's and Prezioso's trial attendance.  He also awarded the requested $855 to Nukk-Freeman & Cerra for the technician's time and the equipment rentals.

But Judge Sceusi concluded that the 110.57 hours for research and writing "exceeds the bounds of necessity and fairness."  Instead, the judge awarded each firm eight hours at $250 per hour for that work.  "The court does not believe it was necessary for both defense law films to expend so much manpower or hours on these specific issues," the judge said.  "The 110.57 hours of combined research, in this court's view, 'exceed those that competent counsel reasonably would have expended to achieve a comparable result' and must be excluded as redundant and unnecessary."