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IN RE THREE MILE ISLAND LITIG.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


December 9, 1982

IN RE: THREE MILE ISLAND LITIGATION

The opinion of the court was delivered by: RAMBO

MEMORANDUM

 On September 9, 1981 this court entered final judgment in the Three Mile Island (TMI) class action for economic losses attributable to the 1979 nuclear accident at Reactor Number 2. The judgment resulted from a settlement agreement between the defendants, various companies which owned, operated, designed, constructed and maintained TMI, and plaintiffs' executive committee, a group of ten law firms appointed by the court to coordinate the prosecution of the many cases filed in this court following the nuclear incident. Before approval of the settlement plaintiffs' counsel involved in the case filed their requests for awards of counsel fees and reimbursement of costs related to the litigation. The court has carefully reviewed each petition and will award fees and expenses in accordance with the standards expressed after the background statement below.

 Background

 Plaintiffs began filing lawsuits in this court within days of the nuclear accident at TMI which began on March 28, 1979. Some were individual suits, others were pleaded as class actions. These suits sought compensatory, punitive and injunctive relief. On May 25, 1979 the first pretrial conference was held by United States Magistrate John Havas. He ably directed the organization of the cases during the initial stage of the litigation. A degree of order was finally achieved when most of the TMI cases were joined into one class action to proceed under a consolidated complaint. In September 1979 the parties agreed to class treatment of Classes I and II, composed respectively of businesses and individuals seeking damages for economic losses. Whether a class should be certified to represent Class III, those claiming physical injuries as a result of the accident, remained a contested issue. Magistrate Havas conducted an evidentiary hearing on the personal injury class question. Plaintiffs and defendants filed legal memorandums to support their positions regarding certification of this class. During the same period the court requested written briefing on the question of federal subject matter jurisdiction over the lawsuit.

 The court filed its opinion on class certification and jurisdiction on July 10, 1980. In essence, the parties' stipulation with respect to Classes I and II was approved by the court. The court affirmed the Magistrate's recommendation to deny class treatment generally to Class III, but to grant class treatment on the issue of entitlement to medical detection services. *fn1"

 During 1979 and 1980 plaintiffs organized and began their development of the factual record needed for trial. The highly technical nature of the nuclear industry and the need to explore the long term health effects of the incident necessitated the hiring of experts for consultation. In tandem with trial preparation, settlement negotiations were also undertaken. Once the class status was determined, the parties and the court devoted time to the design of legal notice to be sent to the class members and the development of claim forms for those expressing a desire to participate in the lawsuit. There were several meetings with the court to discuss both notice and the progress of settlement negotiations. After nearly a year of negotiation, a proposed settlement was signed on February 17, 1981. The parties began a redraft of the class notice to describe the proposed settlement. Six hundred thousand notices informing class members of the lawsuit and proposed settlement were mailed in May of 1981.

 In the period prior to a court hearing on the proposed settlement, plaintiffs' executive committee continued to function. Though trial preparation was no longer necessary, the parties had to hire and prepare witnesses for the court hearing in August. The hearing was to determine whether the court should approve the settlement.

 Under the terms of the settlement a twenty-five million dollar fund was established. Twenty million dollars of the fund are available to pay claims from members of Classes I and II. The remaining five million dollars were set aside for a Public Health Fund. The purpose of the fund is to finance studies of the long term health effects of the TMI incident and to further evacuation planning for the future.

 Award of Fees

 The Court of Appeals for the Third Circuit has been a leader in the development of the law governing federal court awards of attorneys fees. In Lindy Brothers Builders v. American Radiator and Standard Sanitary Corporation, 487 F.2d 161 (3d Cir. 1973) (Lindy I), it described these four steps which the district court should follow in computing attorneys fees:

 

1) A determination of the number of hours spent by each attorney and the manner in which they were spent;

 

2) An evaluation of the reasonable hourly rate for each lawyer's time;

 

3) A determination of the contingent nature of the success of the lawsuit;

 

4) A determination of the quality of the attorneys' work.

 Steps one and two are commonly referred to as the calculation of the "lodestar." The court decides what is a reasonable hourly rate for each attorney on the basis of his or her experience and the customary billing rates in the area where the attorney practices. *fn2" It also looks at the number of hours the attorney spent on the case and determines whether the hours were reasonable in light of the tasks that had to be performed. Hughes v. Repko, 578 F.2d 483, 487 (3d Cir. 1978). Once the hourly fee and the number of hours are approved, one is multiplied times the other to arrive at the lodestar figure.

 The formula is relatively simple in statement, but more subtle in application. The equitable fund doctrine requires that the fund only compensate for those hours that contributed to the creation, increase or protection of the fund. Lindy Brothers Builders v. American Radiator and Standard Sanitary Corp., 540 F.2d 102, 110 (3d Cir. 1976) (Lindy II). With this in mind, the court excluded from the lodestar calculations those hours attributable to contact with private clients that were unrelated to initial investigation and drafting of the complaint or a court appearance at proceedings such as the certification hearing. The Third Circuit has also instructed that "hours spent on purely clerical matters, easily delegable to non-professional assistants, should not be valued at legal service rates." Prandini v. National Tea Co., 557 F.2d 1015, 1020 (3d Cir. 1977). There were instances in these petitions where an attorney was seeking recompense at the attorney rate for time spent copying documents or acting as a courier. With these guidelines in mind the court will discuss the contributions of the various firms to the litigation and determine the reasonable hourly rates and time.

 David Berger, P.A.

 The Berger firm of Philadelphia has a nationwide reputation for handling class, complex and multidistrict litigation. David Berger and his firm were responsible for the organization of plaintiffs' counsel. David Berger served as liaison counsel between plaintiffs' executive committee, which he chaired, and the court. His skills in negotiation certainly helped plaintiffs achieve a settlement.

 The firm was involved in all aspects of the litigation, including the milestone junctures such as class action certification, settlement negotiations and class action notice procedures. The firm undertook primary responsibility to conduct investigations into the merits of the economic loss and medical detection cases, retained and worked with the experts on these matters, advanced most of the costs of the litigation and coordinated the preparation for trial. Once the proposed settlement was presented to the court, this firm proceeded to arrange for the mechanics of mailing notice to area businesses and residences. Its coordination efforts with World Wide Marketing, Inc., the company that actually did the mailing, resulted in a notice operation that was smooth and effective.

 The court recognizes that the role the Berger firm undertook necessarily resulted in a large commitment of manpower. Nevertheless, in reviewing the manner in which each attorney spent his or her time, the court found that there was some duplication of effort; that is more attorneys were involved in particular tasks than called for by the work. No specific hours have been deleted, but this factor became a consideration in the court's appraisal of the quality of the work performed.

 Expenses advanced by David Berger, P.A. will be reimbursed in the amount of $176,056.94. The hourly rates requested for members of the firm are as follows: Attorney 4-79 to 12-79 1-80 to 8-80 9-80 to 6-81 David Berger $250.00 $250.00 $260.00 Harold Berger 175.00 175.00 185.00 Herbert Fogel 250.00 -- -- H. Laddie Montague, Jr. -- 150.00 175.00 Merrill Davidoff 100.00 100.00 125.00 Daniel Berger -- 90.00 100.00 Richard M. Abrams 75.00 75.00 -- Allan Kanner -- -- 75.00 Roger Bernstein 65.00 70.00 80.00 Richard Eppinger 55.00 60.00 75.00 Law Clerks 35.00 35.00 -- Paralegals 25.00 30.00 30.00

19821209

© 1992-2004 VersusLaw Inc.



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