Court has recently held in Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 1994 U.S. LEXIS 3292, 114 S. Ct. 1483 (Sup.Ct. Apr. 26, 1994), that the Act does not apply retrospectively. Thus, defendants insist that since plaintiffs' contempt motion was filed in 1987, reimbursement for such expenses would be barred pursuant to Landgraf.
This Court need not reach defendants' argument regarding Landgraf and retroactivity of the Civil Rights Act of 1991, because it is clear that the amended attorney fee statute does not pertain to this action. Section 113(a) of the Civil Rights Act of 1991 amended the attorney fee provision of the Act to specifically provide that expert fees are reimbursable as part of attorney fees in actions "to enforce a provision of section 1981 or 1981a of this title." 42 U.S.C. § 1988(c) (as amended Nov. 21, 1991). The Pennhurst complaint, however, was not brought under section 1981; plaintiffs only alleged violations of sections 1983 and 1986. Therefore, the provision contained in section 1988 that provides for an award of expert fees does not reach this action.
Nevertheless, the Court has the inherent equitable power in this case to award expert fees. The underlying litigation was a civil contempt action in which the defendants were found to be in deliberate and willful contempt of an order of this Court. Prevailing plaintiffs in contempt actions are entitled to recover the entire cost of bringing the contempt action. Quinter v. Volkswagen of America, 676 F.2d 969, 975 (3d Cir.1982) (emphasis added); see also Chambers v. Nasco, Inc., 501 U.S. 32, 115 L. Ed. 2d 27, 111 S. Ct. 2123, __, (1991) (in contempt action, court may fashion award to make plaintiff "whole for expenses caused by his opponent's obstinacy"; award to plaintiff consisting of entire cost of litigation upheld); Lichtenstein v. Lichtenstein, 425 F.2d 1111, 1113 (3d Cir.1970) ("In a contempt proceeding, the court may, in its discretion award expenses, costs, and fees to the petitioner."). The United States Supreme Court has held that a court's "inherent power" to impose sanctions for contempt is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers, 501 U.S. at __, 111 S. Ct. at 2132. Thus, "if in its informed discretion, neither the statute nor the rules are up to the task, the court may safely rely on its inherent power." Id. at ___, 111 S. Ct. at 2136. In this case, the Court finds that whether or not expert fees are recoverable pursuant to section 1988, they are recoverable in this case as a cost of bringing the contempt litigation so long as the expenses were reasonably incurred, Lichtenstein, 425 F.2d at 1113; see also Roberts v. S.S. Kyriakoula D. Lemos, et al., 651 F.2d 201, 204 (3d Cir.1981) (court has "equitable discretion to award expert fees where expert's testimony is indispensable to determination of the case").
Dr. Conroy testified at trial, and defendants do not dispute that his charges were reasonably incurred. Moreover, the Court finds that Dr. Conroy's testimony was necessary and indispensable to this Court's findings on contempt. Therefore, the Court will allow the plaintiffs reimbursement of all of his expenses in the amount of $ 9,040.00. The other three experts did not testify, however, the Court finds that their participation also was indispensable to this case. As noted, these experts interviewed class members, researched and evaluated class members' medical and habilitation records and wrote reports that enabled the attorneys to prepare and present their contempt case to the Court. Each of these experts has a specialized background in treatment of the mentally retarded. Their expertise was essential to a coherent presentation of evidence involving the well-being of approximately 600 class members, each of whom has unique medical and habilitative needs that are beyond the ken of an attorney. It would be incongruous for the Court to allow hours spent by the attorneys with these experts, yet disallow fees to these same experts. Therefore, their collective expenses in the amount of $ 4,622.73 will be included in the final award.
The last issue concerns the proper allocation of fees and expenses between the two defendants. The County requests the Court to apportion the costs one-half to each party. The Commonwealth, on the other hand, argues that an appropriate allocation would be for the Commonwealth to pay one-third and the County to pay two-thirds based on the relative culpability of the defendants. The essence of the Commonwealth's argument is that it was merely a passive participant in the contempt and that it has only two compliance obligations under the Court's Order. There is only one problem with the Commonwealth's argument -- it is factually inaccurate. The Court's March 28 Opinion discusses the Commonwealth's contempt at length and notes that both defendants "have engaged in sustained and deliberate avoidance of their obligations under the Court Decree." Halderman III, 154 F.R.D. 594, 1994 U.S. Dist. LEXIS 3655,*54, slip op. at 39. Furthermore, the County's funding for mental retardation services is provided almost exclusively by the Commonwealth pursuant to The Mental Health and Mental Retardation Acto of 1966, codified at 50 Pa. Cons. Stat. Ann. § 4101 et seq. Yet the Deputy Secretary of the Commonwealth's Department of Mental Health and Retardation admitted in open court during the contempt proceedings that the Commonwealth allocates money to comply with the Court Decree only when threatened with a contempt action. Id., No. 74-1345, slip op. at 28-29. The Commonwealth was more than a mere passive participant. As found by this Court in the contempt proceedings, it was a co-equal partner with the County in contempt of an order of this Court for a period spanning seven years. In recognition of this fact, the Court's Order of March 28, 1994 contains numerous obligations that apply to the Commonwealth, not the least of which is that the Commonwealth shares joint responsibility with the County to provide community living arrangements to between thirty-three and fifty-five class members.
Consistent with its prior opinion in this case, however, the Court will not pause to consider whether to impose joint and several liability on defendants. See Halderman II, 725 F. Supp. at 864-65 (Court need not reach issue of joint and several responsibility to allocate fees among defendants). As stated by the Eleventh Circuit,
In addition to having discretion on when to apportion fees, district courts also have wide discretion on how to divide liability for fees. . . . Most simply, in cases with roughly equal wrongdoers in which the court does not want to impose joint and several liability for attorney's fees, the fees can be divided equally among the defendants.
Id. (quoting Council for Periodical Distrib. Ass'ns v. Evans, 827 F.2d 1483, 1487 (11th Cir.1987)) (citations omitted). In Halderman II, supra, the Court was concerned that imposition of joint and several liability might lead to duplicative awards. If so, the Court would be required to mediate disputes concerning overlapping fees, thereby inviting further expenditure of judicial resources. This case presents similar concerns. Therefore, the Court will require that each defendant pay one-half of the entire amount of both Halderman and ARC's fees and expenses as follows:
Against Commonwealth of Pennsylvania
ARC attorney fees $201.105.25
ARC allowable expenses $ 21,134.00
Halderman fees & expenses $130,000.00
Against County of Philadelphia
ARC attorney fees $201,105.25
ARC allowable expenses $ 21,134.00
Halderman fees & expenses $130,000.00
Total Against County and Commonwealth $704,478.50
AND NOW, this 25th day of May, 1994, for the reasons set forth in this Court's Memorandum of May 25th, 1994,
IT IS ORDERED:
1. Defendant County of Philadelphia and Commonwealth of Pennsylvania shall pay fees and costs to Halderman plaintiffs' attorney, David Ferleger, in these amounts: Defendant County of Philadelphia: $ 130,000.00; Defendant Commonwealth of Pennsylvania: $ 130,000.00;
2. Defendant County of Philadelphia and Commonwealth of Pennsylvania shall pay fees and costs to Association of Retarded Citizens of Pennsylvania plaintiffs' attorneys, Judy Gran, Frank Laski and Barbara Ransom in these amounts: Defendant County of Philadelphia: $ 222,239.25 Defendant Commonwealth of Pennsylvania: $ 222,239.25;
3. All payments required to be made pursuant to this Order, shall be made within thirty (30) days of the date of this Order.
RAYMOND J. BRODERICK, J.
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