Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER, : : : : Plaintiffs, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. :

C.A.No.04-956-GMS

PLAINTIFFS' OPENING MEMORANDUM IN SUPPORT OF THEIR MOTION FOR ATTORNEYS FEES, INTEREST AND COSTS OF THE NEUBERGER FIRM PURSUANT TO 42 U.S.C. § 1988 AND FED.R.CIV.P. 54 For the reasons set forth in this Memorandum, and the declaration of Thomas S. Neuberger, Esq. and exhibits attached hereto, and the declaration of William Ewing, Esq., pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 54, plaintiffs seek an award of attorneys fees, interest and costs for the successful completion of this case. 1. Applicable federal law in this Circuit on attorneys fees is found in Maldonado v.

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Houstoun, 256 F.3d 181, 184 (3d Cir. 2001); Lanni v. New Jersey, 259 F.3d 146 (3d Cir. 2001); Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989); Rode v. Dellaciprete, 892 F.2d 1177 (3d Cir. 1990); and Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978). 2. The lodestar amount in this case found below is reasonable. It is supported by the Declaration of Thomas S. Neuberger, Esquire (Exhibit 1, hereinafter "T. Neuberger Decl."), and that of William Ewing, Esq. (Exhibit 2, hereinafter "Ewing Decl."). The Declarations sustain the hourly rates requested for attorney Stephen J. Neuberger. All other hourly rates are not in dispute. The hourly rates are reasonable and customary market rates, as is indicated in the Declaration. The current hourly rates of $410 per hour for Thomas S. Neuberger, $250 per hour for Stephen J. Neuberger, $150 per hour for Cheryl A. Sasadeucz, and $85 per hour for staff support are reasonable. 3. Plaintiffs are entitled to recover their reasonable attorneys fees, post judgment interest and costs because they are the prevailing parties pursuant to 42 U.S.C. § 1988. That statute does not provide for the payment of expert witness fees in this § 1983 case, so no such expenses are sought. 4. As is set forth in the Declaration of trial counsel, all services for which compensation is requested were reasonable and necessary to the claims on which plaintiffs prevailed. There are no claims on which plaintiffs did not prevail. All duplicative, extraneous or unnecessary time also has been eliminated, and billing judgment has been exercised by eliminating approximately 209 hours of time. 5. Plaintiffs additionally are entitled to the attorneys' fees incurred in preparing and presenting the pending Motion and in presenting their own other Motions or defending post trial -2-

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Motions of the defendants. A supplemental record on those issues will be submitted to the court at the appropriate time. A. The Result At Trial and the Difficult Course of the Litigation 6. The primary purposes of these consolidated lawsuits are found in the Wherefore Clause of each Complaint. (D.I. 1). Plaintiffs sought a declarations that their Constitutional rights had been violated; compensatory damages for the violation of their rights to free speech and petition, for Sgt. Foraker also that his state law right to be free of defamation had been denied, past lost wages, future lost wages or front pay, emotional distress, injury to reputation, humiliation, punitive damages, attorneys' fees and costs. One hundred percent success was achieved for these goals. 7. After a 12 day trial and about six hours of deliberations the seven person jury found that defendant Chaffinch and his successor defendant MacLeish acted "recklessly, maliciously, or intentionally" in retaliating against plaintiffs for exercising their protected First Amendment rights. The jury also found that Chaffinch defamed Foraker in stating to the media that Foraker was to blame for problems at the firing range, where problems stemming from poor design and construction surfaced almost immediately upon its opening in 1998. The jury awarded compensatory damages of $862,395 to Price, $543,276 to Warren and $74,676 to Foraker. Each of those amounts includes $2,200 for emotional distress, injury to reputation and humiliation. Chaffinch was ordered to pay punitive damages of $15,682 to Foraker, $113,625 to Warren and $181,103 to Price. MacLeish was ordered to pay punitive damages of $6,720 to Foraker, $48,697 to Warren and $77,615 to Price. 8. The docket reflects an overall jury award of $1,923,789 including punitive damages: -3-

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$1,121,113 to Price (D.I. 182); $705,598 to Warren (D.I. 183); and $97,078 to Foraker (D.I. 184). In retrospect is appears that the jury awarded Foraker one year's salary to compensate him until he recovers from his injuries and resumes his career as a full duty officer who expects to retire at age 55. Price and Warren have been or shortly will be dismissed from the force far short of their expected retirement age of 55, and the jury awarded them their full expected wage, benefit and pension losses for their prematurely terminated careers. 9. The road to this jury verdict was long and complicated. Due to the sheer number of cases this firm has successfully prosecuted against the Delaware State Police1 it appears that the strategy for these two cases was to simply bankrupt counsel due to the sheer number of hours they would have to invest in prosecuting the case. In this way counsel would decide as a matter business judgment to stop taking cases for aggrieved Troopers. The time necessary to prosecute the case appears to have doubled from prior ones. 10. Discovery also was complicated. First Stephen Neuberger had to master a mass of scientific and technical data developed by our clients to defend against the accusations being made against them that they destroyed a multi million dollar state facility. This included boxes of materials found in the archives of that facility. Martin Haverly and Stephen Neuberger also had to master a complicated set of medical records for each plaintiff which resulted in dozens of medical records exhibits which were used at trial. Approximately 16 witness and party
1

See Foraker v. Chaffinch, C.A. No.02-302-JJF (D.Del.); Dillman v. Chaffinch, et al., C.A. No. 02-509-KAJ (D.Del.); Bullen and Giles v. Chaffinch, et al., C.A. No. 02-1315-JJF (D.Del.); Warren v. Minner, Chaffinch, et al., C.A. No.03-908-SLR (D.Del.); Davis v. Chaffinch, et al., C.A. No. 04-106-JJF (D.Del.); Price, Warren, and Foraker v. Chaffinch, et al., C.A. No.040956-GMS (D.Del.); Foraker v. Chaffinch, et al., C.A. No.04-1207-GMS (D.Del.); Conley v. Chaffinch et al., C.A. No. 04-1394-GMS (D.Del.); Moss v. Chaffinch, et al., C.A. No. 05-708-GMS (D.Del.). -4-

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depositions were taken. More than 24,000 pages of documents were exchanged. The defense refused to make personnel files generally available to determine disparate treatment issues. So extensive fact investigation had to be made to locate a universe of over two dozen comparators. Then after protracted negotiations those files were reluctantly produced, and then each page had to reviewed by counsel. 11. The legal issues, such as qualified immunity, First Amendment protected activity and adverse action, were also extensive and complex. Between January and March, at least 10 legal briefs were filed in these two cases on the following topics: summary judgment, consolidation, and sanctions for spoliation of evidence. 12. The pretrial documents also were extensive and various motions in limine had to be addressed. Over 155 trial exhibits were prepared and presented. Then a hotly contested 12 day jury trial occurred. B. Plaintiffs Are Entitled To An Award Of Attorneys' Fees 13. Plaintiffs meet all the requirements for the recovery of attorney fees under 42 U.S.C. § 1988: Each one is the prevailing party in his case; The attorney fees incurred were "reasonably expended" on the case; and The attorneys' rates are market rates. 1. Each Plaintiff Is A Prevailing Party 14. The general rule in the computation of fees is that the initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate based on the prevailing market rates in the relevant -5-

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community. City of Burlington v. Dague, 505 U.S. 557, 559-560 (1992); Blum v. Stenson, 465 U.S. 886, 888 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This is "the lodestar figure" which normally represents the reasonable fee contemplated by section 1988. See Hensley, supra. 15. A condition precedent to determining the lodestar is a determination under section 1988 whether a plaintiff was a prevailing party, which is self evident, in light of the jury verdict in this case and an almost two million dollar damages award. The primary purposes of this lawsuit are found in the Wherefore Clause of the Complaints. (D.I. 1). All goals have been achieved. 16. Here the Supreme Court has adopted what it has termed a "generous formulation," and it has held that parties may be considered "prevailing parties" for attorneys' fees purposes if they succeed on any significant issue in litigation that advances all or some of the benefits they seek to achieve. Hensley, 461 U.S. at 433. This includes "some relief on [the] merits of the claim[,]" Hewitt v. Helms, 482 U.S. 755, 760 (1987), which "affects the behavior of the defendant toward the plaintiff[,]" Rhodes v. Stewart, 488 U. S. 1, 4 (1988)(emphasis in original), and which "changes the legal relationship between [the parties]." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). All that has been accomplished herein. 17. In the present case, there can be no doubt that each plaintiff has met the standard for a prevailing party. They prevailed on all their claims and they have affected the behavior of the individual defendants. Parties are deemed to be prevailing parties for attorneys' fees purposes when they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433 (citations omitted). Here plaintiffs are -6-

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receiving all of the benefits they sought in the Wherefore clause of their Complaints. (D.I. 1). The "actual relief" obtained in this lawsuit thus was "substantial" and "material[ly] alter[ed] the legal relationship [between] the parties" by financially "modifying the defendant's behavior in a way that directly benefit[ed] the plaintiff" and the community. Farrar v. Hobby, 506 U.S. 103, 111-112 (1992). 2. The Lodestar - The Attorney Fees Incurred Were "Reasonably Expended 18. A plaintiff's attorneys' fees may be charged to the defendant if the hours were "reasonably expended on the litigation." Hensley, 461 U.S. at 433. The calculation of attorney's fees begins with the computation of a "lodestar" representing the product of the reasonable number of hours spent on the case times a reasonable hourly rate. Id.; see also Lindy Bros. Builders, Inc. of Phila. v. Amer. Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-68 (3d Cir. 1973). The Supreme Court and the Third Circuit have repeatedly recognized a strong presumption that the lodestar constitutes a reasonable fee in a civil rights action. City of Burlington v. Dague, 505 U.S. at 560-64; Pa. v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Blum v. Stenson, 465 U.S. 886, 896 (1984); Student Pub. Interest Research Group of N.J., Inc. v. AT&T Bell Lab, 842 F.2d 1436, 1453 (3d Cir. 1988); General Instrument Corp. of Del. v. Nu-Tek Electronics & Mfg., Inc., 197 F.3d 83, 91 (3d Cir. 1999). Adjustments should be made in the lodestar only in "rare, exceptional cases." D'Emanuele v. Montgomery Ward & Co. Inc. 904 F.2d 1379, 1383 (9th Cir. 1990), overruled on other grounds by Burlington v. Dague, 505 U.S. 557 (1992); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (the lodestar is presumptively reasonable and "should be modified only in exceptional cases."). 19. A day-by-day list of all services rendered in the case is included in the Declaration. -7-

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As described, all attorney time was adequately documented on contemporaneous time records and entered into a computer data base from which those records were carefully compiled. Moreover, all hours sought to be reimbursed were reasonably expended in every respect. 20. Counsel also are well-qualified, diligent attorneys. The hours worked by each attorney reflect a sensible division of labor. (T. Neuberger Decl. ¶ 24). They spent a reasonable and appropriate amount of time on the case considering it involved the loss of several millions of dollars, as is reflected in the result they obtained and the time spent on various facets of the case which is set out in the Declaration. The lodestar is set out below for the various phases of the case. 21. First there is the value of the lodestar and time in this case for the Neuberger Firm at the trial level. Total Lodestar Time at Trial Level Telephone conferences, written correspondence2 Total Hours: 154.3 Office conferences with three clients, counsel or others3 Total Hours: 289.8 Legal research4 Total Hours: 151.0

2

Time codes 790, 800, 810, 820, 830, 420, 430, 170, 210, 420, 430. Codes 100, 110, 120. 410. -8-

3

4

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Preparation of Legal Memoranda for file5 Total Hours: 88.4 Complaint, written discovery and other pleadings preparation or review, including extensive document production, very lengthy written interrogatory answers, motions6 Total Hours: 278.3 Deposition Preparation7 Total Hours: 92.8 Taking or defending depositions8 Total Hours: 74.4 Document review and examination , and document management9 Total Hours: 11.8 Fact investigation and analysis10 Total Hours: 43.6 Expert witness consultation and analysis, review of reports from four experts and development of a million dollar loss projection with

5

450, 250. 160, 700, 360, 620, 630, 690, 220, 241, 242, 245, 500, 550, 710. 240. 230. 260, 261, 610, 21. 400, 280, 281, 480, 840. -9-

6

7

8

9

10

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supporting record11 Total Hours: 9.3

File memos, organization or review12 Total Hours: 11.5

Summary Judgment briefing, defend defense motion and present other briefing on summary judgment, consolidation and spoliation sanctions. 13 Total Hours: 406.8 Settlement efforts14 Total Hours: 2.0 Pretrial conference and document preparation, the actual pretrial conference and follow-up, other earlier court appearances15. Total Hours: 203.9 Trial preparation for a 12 day jury trial: testimony of witnesses in plaintiffs' case in chief, cross examination, opening statement, final argument and rebuttal, review and study juror pool, prepare and review

11

271. 310, 320, 330, 60. 90, 25, 785. 720. 640, 70, 50, 370, 350. -10-

12

13

14

15

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trial exhibits and defense exhibits16. Total Hours: 400.7

Trial, 12 days, two attorneys for three plaintiffs17 Total Hours: 187.2 Paralegal production of trial exhibit books, set up and break down of the trial table each day, control electronic media during trial. Total Hours: 142.7 Post Trial Submissions18 Total Hours: 1.0 ______________________ Total All Hours: 2549.519 Total Value of 2340.5 hours after billing discretion TSN 800.7 hours20 @ $410/hour $ 328,287.00 SJN 978.6 hours21 @ $250/hour $ 244,650.00

16

860. 850. 855.

17

18

These are the total hours before the exercise of billing discretion which subtracts 209 hours leaving a balance of 2340.5 hours. Eight percent of total hours were removed in the exercise of billing discretion.
20

19

This is the balance after 13 hours were eliminated. This is the balance after 100 hours were eliminated. -11-

21

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CAS

319.3 hours22 @ $150/hour $ 47,895.00

JR

141 hours23 @ $85/hour $ 11,985.00

JU law clerk 125.4 hours @ $85/hour24 $ 10,659.00

__________ Total value of time after exercise of all billing judgment $ 643,476.00 __________ $ 643,476.00

TOTAL VALUE OF TRIAL LODESTAR

22. From the above it can be seen that a grand total of 2340.5 hours were devoted to the trial in this case. In the exercise of billing judgment 209 hours were first subtracted from a higher total of 2549.5 leaving a residue of 2340.5 hours for which compensation is being sought at normal hourly billing rates. Accordingly, an attorneys' fee award of $ 643,476.00 is reasonable and appropriate in this case for the work of The Neuberger Firm through June 5, 2006.25

22

This is the balance after 60 hours were eliminated. This is the balance after 27 hours were eliminated.

23

The law clerk exhaustively researched the area of adverse action which was a dominant defense at trial, the collateral source issues which were a trial defense and analyzed the extensive medical records and medical issues in the case. An independent basis for limited attorneys fees and costs also is found in several of the Court's pretrial rulings. First, in an Order dated April 12, 2006, the Court awarded plaintiffs "reasonable attorneys' fees and expenses" related to the prosecution of their motion for sanctions for spoliation of evidence. (D.I. 134 at 3). Second, during the April 18, 2006 pretrial conference, -1225

24

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23. The hours spent by counsel were incurred reasonably in a hard fought, difficult case in which the obstructive defense tactics throughout inevitably drove up the hours necessary to prevail and counsel should recover a fully compensatory fee for all their activities. Indeed, the Supreme Court has recognized that the degree of the prevailing parties' overall success affects the "reasonableness" of a fee award. Hensley, 461 U.S. at 430. The "most critical factor is the degree of success obtained." Id. at 436. In determining the "reasonableness" of a fee in civil rights cases, the courts have focused on the "results obtained" and whether the prevailing party "achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award[.]" Id. at 434. That certainly was the case herein with the jury's total damages verdict. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Id. at 435. 3. Counsels' Billing Rates Are Market Rates 24. The other principal component of the lodestar approach to determining attorney's fees is the attorney's hourly rate. 25. Here the Third Circuit has held that the current market rate for purposes of an attorney fee award is the rate at the time of the fee petition, not the rate at the time the services were performed. Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001). Here Thomas S. Neuberger's rate is $410 per hour. Stephen J. Neuberger's rate is $250 per hour. Their associate Cheryl A. Sasadeusz's rate is $150 per hour and their paralegal and law clerk rate is $85 per

the Court awarded plaintiffs the costs related to having to file their motion to strike (D.I. 124) the untimely motions in limine filed by defendants (see D.I. 113, 117), as well as the costs related to plaintiffs' response to the motions at the pretrial. (Pretrial Transcript at p. 37). The time related to these events has been compiled and is attached at Tab F of the T. Neuberger Declaration. -13-

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hour. (T. Neuberger Decl. ¶¶ 28-29). None of these hourly rates are unreasonable and the extensive record demonstrates that they are market rates. 26. All rates have been agreed to by the parties except that of Stephen Neuberger. 27. The calculation of reasonable fees under section 1988 is determined by the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984). The prevailing market rates for attorneys for the successful party are broadly defined as "those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id. at 895 and n.11. 28. Both Thomas S. Neuberger and William Ewing, Esq. have attested to the reasonableness of Stephen Neuberger's hourly rate. As discussed below, the State of Delaware has previously agreed to it as well. 29. After graduation from the University of Delaware with a B.A. degree in history, Mr. Stephen Neuberger worked for the firm for approximately eight months, before enrolling in Temple University Beasley School of Law. Then he served as the firm law clerk during his three years in law school where he successfully graduated in May of 2003 with a Juris Doctor degree. There he distinguished himself in trial advocacy. While serving as the firm law clerk, Mr. Neuberger specialized in briefing the areas of free speech, and other legal issues in employment and civil rights litigation. He successfully completed the Delaware Bar examination in 2003 and he was admitted to the Delaware Bar on December 15, 2003. Since that time, he has become the Firm expert in the area of public employee free speech retaliation case law. (T. Neuberger Decl. ¶ 20). 30. He was admitted to the following bars on the dates indicated: the Delaware Supreme

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Court, 2003; the U.S. District Court for the District of Delaware, 2004; the Third Circuit, 2004; the Fourth Circuit, 2004, and the D.C. Circuit, 2004. He is a member of the Delaware State Bar Association and the National Employment Lawyers Association. (T. Neuberger Decl. ¶ 21). 31. As a result of his focused time as a law clerk, the senior Mr. Neuberger considers him to have the experience of an attorney with six years of litigation experience. His work product, work ethic, intellect and ability are of the highest rank and quality. (T. Neuberger Decl. ¶ 22). Since admission to the Bar some of his more significant constitutional or civil rights reported judicial decisions include: Springer v. Henry, 435 F.3d 268 (3d Cir. 2006) (First Amendment free speech retaliation case - affirming plaintiff's jury verdict on behalf of an independent contractor physician). Reyes v. Freebery, 141 Fed.Appx. 49 (3d Cir. 2005) (per curiam) (remanding to the district court to explain its restrictions on the public's right of access to judicial records and counsel's First Amendment right to be free of prior restraints). Hugger v. The Rutherford Institute, 94 Fed.Appx. 162 (4th Cir. 2004) (successful First Amendment defense of civil rights organization sued for defamation by public officials). Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005) (upholding the First Amendment free speech retaliation claims brought by an Air Force sergeant who was disciplined for speaking out about a tainted anthrax vaccine administered by the Air Force that was poisoning military personnel). Dobrich v. Walls, 380 F.Supp.2d 366 (D.Del. 2005) (school board members immune from individual liability for praying before board meetings). Conley v. Chaffinch, 2005 WL 2678954 (D.Del. March 4, 2005) (First Amendment free speech opinion - denying defense motion to impose a gag order on the plaintiff and her attorneys to prevent them from criticizing misconduct by high government officials). Bullen v. Chaffinch, 336 F.Supp.2d 357 (D.Del. 2004) (ordering the "instatement" of two state troopers who were illegally denied promotion because of their race). Bullen v. Chaffinch, 336 F.Supp.2d 342 (D.Del. 2004) (upholding Fourteenth Amendment race discrimination in promotions jury verdict on behalf of two state troopers). -15-

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Springer v. Henry, 2004 WL 2127172 (D.Del. Sept. 16, 2004) (upholding First Amendment free speech retaliation jury verdict on behalf of an independent contractor physician). Maloney v. Gordon, 2004 WL 1043202 (D.Del. May 4, 2004) (in a First Amendment public corruption action, rejecting defense effort to impose umbrella protective order that would seal off judicial records from public access). 32. The senior Mr. Neuberger is familiar with the hourly rates charged in many areas, especially Philadelphia and Wilmington. He is acquainted with hourly rates charged by other law firms in Wilmington and in Philadelphia. In his opinion the $250 per hour rate for Stephen Neuberger and that of $85.00 per hour for the firm paralegal and law clerk, are not in excess of the usual and customary rates for Philadelphia or Wilmington attorneys or paralegals who enjoy comparable reputations, skill and experience. (T. Neuberger Decl. ¶ 30).26 33. Additionally, he has personal knowledge that the major Wilmington, Delaware firm of Young, Conaway, Stargatt & Taylor bills at least $250 per hour for just two year associates in its Labor department, not even considering that such a two year associate may not even have the equivalent of six years of litigation experience. In the less complex area of bankruptcy law that Firm's two year associates bill at an even higher hourly rate. Stephen Neuberger has consistently demonstrated that his ability, skill, experience and reputation is greater than his peers at major law firms. For example, he has already successfully completed two appeals in the Fourth and Third Circuits after oral argument, garnered one major free speech decision at the district court level, second-chaired four significant verdicts following federal court jury trials, completed successful post trial briefing and defended the verdicts in the cases that did not subsequently

Cf. Potence v. Hazleton Area School Dist., 357 F.3d 366, 375 (3d Cir. 2004) (upholding an award of $85 per hour for paralegal work). -16-

26

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settle, and successfully completed intensive sanctions briefing against opponents in major law firms. (T. Neuberger Decl. ¶ 31). 34. Attorney William Ewing has also testified that Stephen's rate is reasonable and within the range of rates prevailing in the community for attorneys of his background, skill, reputation and experience. (Ewing Decl. ¶ 11). 35. Recently in March 2006, as part of the settlement following the State's unsuccessful appeal in the Springer case, the State of Delaware agreed and consented to Stephen Neuberger's hourly rate of $250 following the Third Circuit's decision in Springer v. Henry, 435 F.3d 268 (3d Cir. 2006). (T. Neuberger Decl. ¶ 32). 36. Defendants in the present case have agreed and consented to the hourly rate of $220 for Stephen Neuberger. (Exhibit 3 - 6/6/06 e-mail from E. Ellis to T. Neuberger). Accordingly, the dispute between the parties is narrowly focused on the difference between Stephen Neuberger's regular hourly rate of $250 and the $220 figure agreed to by the defense. 37. The market rate is usually the attorney's normal billing rate for clients who pay on an hourly non-contingent basis. See Hensley, 461 U.S. at 431 n.4; Black Grievance Comm. v. Phila. Elec. Co., 802 F.2d 648, 652 (3d Cir. 1986), vacated, 483 U.S. 1015 (1987), remanded, 825 F.2d 768, opinion on remand, 690 F.Supp. 1393 (E.D. Pa. 1988). In Hensley, the Supreme Court noted that It is intended that the amount of fees awarded...be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be non pecuniary in nature . . . In computing the fee, counsel for a prevailing party should be paid, as is traditional with attorneys compensated by a fee-paying client...." 461 U.S. at 431, n.4 (citations omitted)(emphasis added). The Hensley Court went on to clearly -17-

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state that attorneys representing successful civil rights litigants should receive the same compensation as those attorneys would receive for handling other matters. As nearly as possible, market standards should prevail, for that is the best way of ensuring that competent counsel will be available to all persons with bona fide civil rights claims. This means that judges awarding fees must make certain that attorneys are paid the full value that their efforts would receive on the open market in non-civil rights cases, both by awarding them market-rate fees, and by awarding fees only for time reasonably expended. Id. at 447 (emphasis added, internal citation omitted); see also Missouri v. Jenkins, 491 U.S. 274, 286 (1989) ("attorney's fee awarded under § 1988 is to yield the same level of compensation that would be available from the market"); Black Grievance Comm., 802 F.2d at 652 ("The historic billing rates set forth in [plaintiff's attorneys'] uncontested affidavits establish marketplace rate."), vacated on other grounds, 483 U.S. 1015 (1987); Cunningham v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985) ("Since [plaintiff's attorney's] affidavit is uncontradicted, there is no material issue of fact.") , vacated on other grounds, 478 U.S. 1015 (1987) ("we have consistently held that the lodestar calculation must be based on historical time charges for individual attorneys.") Student Pub. Interest Research Group v. AT&T Bell Labs., 842 F.2d 1436, 1445 (3d Cir.1988)(the Court has "consistently relied on billing rates in determining market rates" and has only diverged from applying actual billing rates where "billing rates alone fail to tell the full story"); Lawrence v. City of Phila., 700 F.Supp. 832, 836 (E.D. Pa. 1988) ("[a]bsent extraordinary circumstances...an attorney's market rate charged to private clients is generally accepted as his reasonable rate for fee awards."); cf. Keenan v. City of Phila., 983 F.2d 459, 475 (3d Cir. 1992) (lower court erred in holding that law firm's method of billing based upon a uniform hourly rate could not be reflective of market rate).

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38. The Neuberger Firm has only one billing rate for its employees which is charged to all hourly clients. It is $250 per hour for Stephen Neuberger's services. (T. Neuberger Decl. ¶¶ 28-29). C. Plaintiffs Are Entitled To Reimbursement For Fees And Costs Incurred In The Preparation Of This Fee Motion, For Post Trial Proceedings, And For Out of Pocket Costs 39. Time spent by attorneys in preparing and presenting a petition for counsel fees is recoverable. Planned Parenthood of Central New Jersey v. Attorney General of State of New Jersey, 297 F.3d 253, 268 (3d Cir. 2002); Bagby v. Beal, 606 F.2d 411, 415-16 (3d Cir. 1979). Time spent defending the verdict also will be compensable as simply part of the overall prosecution of the case. After any briefing on the present issues, counsel will submit supplemental declarations in this regard to complete the record. 40. Section 1988 also has been construed to authorize the recovery of a broad range of litigation expenses beyond statutory costs proper to a Bill of Costs. These are expenses that are normally charged separately to fee-paying clients and that are not part of the office overhead incorporated into the attorney's billing rates.27 These expenses have been properly itemized in the Declaration and total $38,729.01 for trial exhibits28, deposition transcripts29, photocopying,

See Abrams v. Lightolier Inc., 50 F.3d 1204, 1225 (3d Cir. 1995); Henry v. Webermeier, 738 F.2d 188, 192 (7th Cir. 1984); Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983); Dowdell v. City of Apopka, 698 F.2d 1181, 1188-92 (11th Cir. 1983); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981)(en banc); Northcross v. Board of Ed., 611 F.2d 626, 639 (6th Cir. 1979); Davis v. City and County of San Francisco, 976 F.2d 1536, 1556 (9th Cir. 1992), vacated in part on denial of rehearing, 984 F.2d 345 (9th Cir. 1993).
28

27

Spell v. McDaniel, 616 F.Supp. 1069, 1112-15 (E.D.N.C. 1985).

Vaughns v. Board of Ed., 598 F.Supp. 1262, 1289-90 (D. Md. 1984), aff'd, 770 F.2d 1244 (4 Cir. 1985).
th

29

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and other reasonable and necessary items for the case. The items are set out below. Foraker v. Chaffinch, C.A.No. 04-1207-GMS - Expenses Court Costs and Filing Fees 8/26/04

CK.#6777

150.00

Depositions of trial witnesses (Baylor, Davis, Chaffinch) Wilcox and Fetzer 9/19/05 Ck.#7078 Postage, Delivery or Service of Documents, Subpoenas, etc. D & M Professional Services 9/30/04 Ck.#6813 Printing, Copying and Exhibit and Document Creation Aztec Copies 3/14/05 CK.#6968 Dr. Jill Mackey - Copy of Foraker Medical Records 5/11/05 CK.#6999 In-House Copying Invoice of 2/13/06 Postage Court and Hearing Transcripts Kevin J. Maurer for 12/7/05 Conference before Judge Sleet 1/3/06 Ck.#7186 Unpaid postage Unpaid copying done in house by the Firm TOTALS:

1867.78

150.00

28.00 25.00 729.12 26.22

49.50 11.01 $2,464.92 _________________ $5,501.55

Price v. Chaffinch, C.A.No. 04-956-GMS - Expenses

Clerk, U.S. District Court, filing fee Conference Call Fees AT&T 1/23/06 Depositions of trial witnesses -20-

$150.00

Ck.#7207

60.73

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Wilcox and Fetzer (Baylor, MacLeish, Papili) 8/30/05 Ck.#7064 Wilcox and Fetzer (Yeomans, W. Warren) 12/8/05 Ck.#7152 Wilcox and Fetzer (W. Warren Vol. II) 12/8/05 Ck.#7153 Wilcox and Fetzer (Baylor - Vol. II, Foraker) 12/27/05 Ck.#7169 Wilcox and Fetzer (Forester) 1/16/06 Ck.#7187 Wilcox and Fetzer (McQueen, Dillman) 2/3/06 Ck.#7221 Wilcox and Fetzer (Dixon) 2/13/06 Ck.#7223 Printing, Copying and Exhibit and Document Creation Aztec Copies 9/21/04 Ck.#6805 Aztec Copies 11/4/04 Ck.#6869 Gary T. Quiroga, M.D. - Copies of Price Medical Records 5/11/05 Ck.#11488 Charles Stanislav, M.D. - Copies of Warren Medical Records 5/11/05 Ck.#11489 Parcels 12/8/05 Ck.#7154 Parcels 2/13/06 Ck.#7224 In house copying and postage paid on 4/26/06 and 5/2/06 Postage, Delivery or Service of Documents, Subpoenas, etc. D & M Professional Services 9/13/04 Ck.#6797 UPS 9/13/05 Ck.#7076 UPS 12/8/05 Ck.#7151 D & M. Professional Services 1/3/06 Ck.#7185 D & M. Professional Services 1/24/06 Ck.#7208 Witness Fees Ret. Major Joseph N. Forrester 12/27/05 Ck.#7167 Unpaid postage Unpaid copying -21-

2192.55 1562.98 500.50 688.85 630.10 1120.90 441.42

333.38 288.00 25.00 25.00 126.00 345.00 10,000.00

180.00 15.33 30.66 45.00 180.00

94.30 121.59 6,260.52

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Unpaid invoice from AQUIPT for courtroom electronic projection equipment for 12 days, set up and return Unpaid invoice from Parcels for production of jury trial exhibit books with over 150 exhibits in each TOTALS:

4,232.00

3,577.65 _________________ $33,227.46

41. In Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994), the court held that a party can recover, as part of a section 1988 fee award, and without the use of a bill of costs, out of pocket expenses for service of the summons and complaint, copying, trial subpoenas and an expert witness deposition. D. Plaintiffs Are Entitled To Pre-Judgment Interest On Liquidated and Unliquidated Compensatory Damages 42. Neither § 1983 nor its companion statute, 42 U.S.C. § 1988, makes reference to prejudgment interest. Where a federal statute is silent as to the availability of prejudgment interest, the trial judge has the power and the discretion to award prejudgment interest to a plaintiff who prevails under that statute. Savarese v. Agriss, 883 F.2d 1194, 1207 (3d Cir. 1989)(§ 1983 case)(In federal question cases, awards of prejudgment interest are generally committed to the discretion of the district court); Rao v. New York City Health and Hospitals Corp., 882 F.Supp. 321, 325 (S.D.N.Y. 1995). 43. The Third Circuit in Savarese, supra, relying upon its prior decision in Poleto v. Consolidated Rail Corp., 826 F.2d 1270 (3d Cir. 1987), declared that the issue of whether prejudgment interest is awardable in an action arising under a federal statute (such as § 1983) is governed by federal law. Savarese, 883 F.2d at 1207. See also Golden State Transit Corp. v.

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City of Los Angeles, 773 F.Supp. 204, 209 (C.D. Cal. 1991)(citing Savarese for the proposition that "courts in other circuits have held that federal law applies to the issue of prejudgment interest"). 44. In applying federal law, most of the courts that have addressed this issue have concluded that prejudgment interest should be awarded to the prevailing plaintiff in a § 1983 case to effectuate the salutary purposes of § 1983. For example, in Golden State, supra, the court ruled that a successful § 1983 plaintiff should recover prejudgment interest because "[t]he purpose of a § 1983 damages award is to compensate the plaintiff for injuries caused by the deprivation of constitutional rights" and "[p]rejudgment interest is an element of compensation, not a penalty". 773 F.Supp. at 208-09 (citing Carey v. Piphus, 435 U.S. 247, 254 (1978)). Similarly, in DeLaCruz v. Pruitt, 590 F.Supp. 1296, 1309 (N.D. Ind. 1984), the court, in awarding prejudgment interest to the successful plaintiff in a § 1983 case, noted that "prejudgment interest serves to further the congressional purposes underlying § 1983," i.e., awarding full compensation to a plaintiff whose constitutional rights have been infringed. The court in Rao echoed this rationale when it stated: Awarding prejudgment interest on a § 1983 claim is justified...The purpose of the remedial scheme provided by 42 U.S.C. § 1983 is to fully compensate individuals for harm suffered as a result of a constitutional violation. Prejudgment-interest is usually a necessary component of any award intended to make a plaintiff whole, because it compensates a plaintiff for delay in the receipt of relief. Consequently, prejudgment interest is generally appropriate in § 1983 actions. 882 F.Supp. at 326. See also, Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993)(court affirmed district court award of prejudgment interest in § 1983 action where award

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was intended "to fully compensate plaintiff for actual damages incurred").30 45. In reaching the same conclusion but applying somewhat different although equally compelling logic, the Third Circuit in Savarese ruled that the district courts, in their discretion, are free to award prejudgment interest under federal law to successful plaintiffs in § 1983 cases (as an element of damages), to discourage dilatory tactics by defendants who refuse to settle. 883 F.2d at 1207-08 & n.23. This rationale is particularly applicable to our present case since many abuses were created by the defendants. Accordingly, under the Third Circuit's reasoning in Savarese, plaintiffs are entitled to an award of prejudgment interest on the judgments they obtained under § 1983. See also Poleto, 826 F.2d at 1276 n.10; Savarese, 883 F.2d at 1207 n.23 (depriving injured plaintiff of right to interest created by injury encourages defendant to put off day of judgment as long as possible). 46. This Court has previously awarded prejudgment interest in the § 1983 First Amendment retaliation context. See Springer v. Henry, 2004 WL 2127172, *16 (D.Del. Sept. 16, 2004). Other courts that have considered the issue have ruled that, under federal law, prejudgment interest should routinely be awarded to successful § 1983 plaintiffs. See, e.g., Gorelangton v. City of Reno, 638 F.Supp. 1426, 1433 (D. Nev. 1986) (prejudgment interest

Applying similar logic, the Supreme Court and Third Circuit in other federal question cases have affirmed awards of prejudgment interest in order to fully compensate the injured party. See, e.g., Jacobs v. United States, 290 U.S. 13, 17 (1933)(prejudgment interest awarded under Fifth Amendment for wrongful "taking"); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56 (1983)(award of prejudgment interest in patent case proper); Loeffler v. Frank, 486 U.S. 549, 558 (1988)(In Title VII case, "prejudgment interest, of course, is an element of complete compensation") (internal quotation marks omitted); Green v. USX Corp., 843 F.2d 1511, 1530 & n.16 (3d Cir. 1988)(action arising under Title VII and 42 U.S.C. § 1981 - "the purpose of [prejudgment interest] is to ensure that the injured party will be made whole[.]"); Brock v. Richardson, 812 F.2d 121, 127 (3d Cir. 1987) (in an FLSA case, noting the "presumption in favor of pre-judgment interest" and finding that the "usual equities [are] in favor of such interest"). -24-

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awarded on § 1983 claim for false arrest and wrongful death); Hall v. Ochs, 817 F.2d 920, 92627 (1st Cir. 1987) (prejudgment interest awarded to successful § 1983 plaintiffs whose action alleged assault and battery, false arrest and false imprisonment); Orshan v. Macchiarola, 629 F.Supp. 1014, 1016-18 (E.D.N.Y. 1986) (prejudgment interest awarded to prevailing § 1983 plaintiff in claim for mental anguish and emotional distress). Thus, the great weight of the authority supports an award of prejudgment interest to plaintiff in this proceeding. 47. Here, the jury awarded plaintiff compensatory damages that were "liquidated" for past and future wages and benefits once the $2,200 emotional distress, reputation and humiliation amounts are removed. Thus the liquidated damages for each plaintiff on which prejudgment interest should be awarded is: Price $860,195; Warren $541,076, and Foraker $72,476. 48. Indeed, most of the courts that have confronted the issue of a mixed verdict with liquidated and unliquidated elements have ruled that prejudgment interest in a § 1983 case is awardable on the entire judgment, regardless of whether it includes (or consists entirely of) "unliquidated" damages for pain and suffering, mental anguish and the like. See, e.g. Golden State, 773 F.Supp. at 212 ("[F]ederal law does not require the denial of prejudgment interest just because Golden State's claim was not "liquidated"); Gorelangton, 638 F.Supp. at 1433 (prejudgment interest awarded on unliquidated § 1983 claims for false arrest and wrongful death); Hall, 817 F.2d at 926-28 (prejudgment interest awarded on "unliquidated" damage claims for battery, false arrest, false imprisonment and emotional distress); Orshan, 629 F.Supp. at 1016-17 (prejudgment interest awarded on damages awarded for emotional distress and mental anguish in § 1983 case); Rao, 882 F.Supp. at 325-26 (prejudgment interest awarded in § 1983 action on general verdict that included lost wages and emotional distress). 49. These decisions are based on sound logic because when it comes to awarding

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prejudgment interest, any attempted distinction between "liquidated" and "unliquidated" claims is artificial and arbitrary. For this reason, the Supreme Court has abandoned this distinction, at least in the context of patent infringement cases. See General Motors Corp. v. Devex Corp., 461 U.S. 648, 651-55 (1983). As one court has noted aptly: "Federal courts clearly have the latitude to award prejudgment interest in cases arising under the patent, copyright, antitrust laws and tax laws, where claims are also not liquidated. There is no reason to distinguish those cases from cases under § 1983." Golden State, 773 F.Supp. at 212. As the Supreme Court declared in Devex, in language that applies with equal force to cases arising under § 1983: The standard governing the award of prejudgment interest under [the patent laws] should be consistent with Congress' overriding purpose of affording patent owners complete compensation. In light of that purpose, we conclude that prejudgment interest should ordinarily be awarded. 461 U.S. at 655. Accord Orshan, 629 F.Supp. at 1017. 50. It is necessary for the Court to determine the rate of interest that should be applied to the judgment in order to fix the proper amount of prejudgment interest due plaintiffs. Here plaintiffs suggest it is the rate under 28 U.S.C. § 1961, which is the rate used by the Court in its earlier decision in Springer v. Henry, 2004 WL 2127172, *16 (D.Del. Sept. 16, 2004). This is the rate equal to the weekly average one year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve system.31 51. Accordingly, under federal law, plaintiffs are entitled to an award of prejudgment interest from the date of June 25, 2004, through the entry of the judgment on the jury verdict, compounded semi-annually.

31

See www.federalreserve.gov. at http://federalreserve.gov/releases/h15/data/wf/ -26-

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CONCLUSION 52. This case did not just serve the private interest of plaintiffs which were fully vindicated. As a "private attorney general" plaintiffs also vindicated policies "Congress considered of the highest priority." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). This should result in a fully compensatory fee award. 53. For the reasons stated, it is respectfully requested that up to May 31, 2006, the Court: (a) make an award of attorneys fees and law clerk and paralegal services to The Neuberger Firm in the amount of $ 643,476.00, (b) make an award of expenses and costs for this case in the amount of $38,729.01, ( c) award post-judgment interest on those amounts from the date of the jury verdict on May 31, 2006 and (d) award prejudgment interest on the liquidated and unliquidated damages award between June 25, 2004, through May 31, 2006 compounded semiannually. 54. The fees and costs award should run against the State Defendant, as well as the individual defendants in their official and individual capacities. Other compensatory damages entered in this case only run against the individual defendant individually because of Eleventh Amendment considerations. Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Thomas S. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: June 19, 2006 Attorneys for Plaintiffs -27-

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Unreported Opinions

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Only the Westlaw citation is currently available.

United States District Court, D. Delaware. David T. SPRINGER, M.D., P laintiff, v. Renata J. HEN RY, individually and, in her official capacity as Director of the Division of Alcoholism, Drug Abuse and Mental Health of the Department of Health and Social Services of the State of Delaware and Gregg C . Sylvester, M.D ., in his official capacity as Secretary of the Department of Health and Social Services of the State of D elaware, D efendants. No. C.A. 00-885 GM S. Sept. 16, 2004. Thomas S. Neuberger and Stephen J. Neuberger of T he Neuberger Firm, P .A., W ilmington, Delaware for the plaintiff. Phebe S. Young and Marc P. Niedzielski of the Department of Justice, Civil Division, Wilmington, Delaware for the d efendant.

Alcoholism, Drug Abuse and Mental Health, retaliated against the plaintiff, Dr. David T. Springer ("Springer"), for exp ression s of pro tected speech, in violation of the First Amendment to the United States Constitution. The plaintiff was awarded damages accordingly. The defendant now challenge the verdict and moves for a new trial. The plaintiff seeks reinstatement and attorneys' fees, interest, and costs. For the reasons stated below, the co urt will grant in part the defendants' motion challenging the damages award. The verdict will otherwise stand. The judgment for a new trial will be denied. Likewise, the plaintiff's motion for reinstatem ent will be denied. The court will grant the plaintiff's motion for fees, interest, and costs based on the adjusted award. II. BACKGROUND A. Procedural History The plaintiff Springer filed a complaint on October 6, 2000, seeking compensatory and punitive damages, as well as injunctive relief for "retaliatory violations of the free speech and petition clauses of the First Amendm ent of the U.S. Constitution." (D.I.1). Springer named Renata Henry, individually and in her official capa city as Director of the Division of Alcoholism, D rug Abu se and Mental Health ("DADA MH ") of the Delaware Department of Health and Social Services ("DDH SS"), Dr. Gregg Sylvester, in his official capacity as Secretary of the DD HSS , and the DDH SS as de fendants. (D.I.1). In his complaint, Springer requested, among other relief, compensatory damages, punitive dama ges, attorneys' fees and costs, and reinstatem ent. (D.I.1). On June 19, 2001, the parties stipulated to dismiss the DDHSS and "all claims for monetary damages against the two individual defendants in their official capacities, if any such claims were implicit in the Complaint." [FN1] (D.I.24).

MEMORANDUM OPINION SLEET, J. I. INTRODUCTION *1 Presently before the court are the parties motions for post-trial relief. Following a four-d ay jury trial, in which the jury concluded that the defendant, Renata Henry ("Henry"), the director of Delaware's Division of

FN1. Effectively, this dismissed Dr. Sylvester from the action. Since he is no longer Secretary, he has no authority to reinstate Dr.

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Springer to his former position. As such, the remaining injunctive claim for reinstatement against Sylvester is moot. Thus, in spite of the parties use of both the singular and plural tenses when referring to the defendant(s), it seems clear that only one defendant remains in this action --Renata J. Henry.

position at the D PC . (D.I.98). The parties submitted post-trial motions, which the court presently considers. B. Factual Background 1. Springer's Contract Springer began working for the DPC as a part-time independent contractor physician in 1991. [FN3] (B033 9). [FN4] He worked under annual contracts that were autom atically renewed for nine years until June of 2000. (B0 343 ). From 19 91 to 200 0, Springer's contracts specified that the contract term was for one year and could be term inated without cause upon fifteen days notice. The contract terms did not guarantee renewal. Nevertheless, until 2000, S pringer's contract was renewed each year.

The defendant H enry moved for summary judgment on November 9, 20 01 , arguing that Sp ringer's speech was not protected; that, in the alternative, it was disruptive; that his termination was inevitable given his failure to subm it a bid; that, regardless, Springer has not suffered any dam ages; and, finally, that Henry wa s entitled to qualified immu nity. [FN2] (D.I.47). Springer cross-moved for partial summary judgment on November 19, 2001, arguing that his speech was protected under the First Amendm ent, and that Henry was not entitled to qualified immunity. On March 11, 2002, the court denied Henry's motion for summary judgment and granted Springer's cross-motion for partial summary judgment. (D.I.47). The court concluded that Sp ringer's speech was protected and that Henry was not entitled to qualified immunity. (D.I.47). Specifically, the court identified the memorandum dated Novem ber 23, 1999 , and a report filed with the Gove rning Bo dy on March 2 1, 20 00, as protected speech. (D.I.4 7, pp . 3- 4). T he issues that rem ained to be decided by a jury at trial were whether Henry terminated Springer because of his exercise of protected speech, and, whether as a result of his termination, Springer suffered any damages. On March 18, 2002, Henry and Sylvester appealed the Order. However, the ir appeal was dismissed on November 29, 2002.

FN3. In 1991, DP C was known as Delaware State Ho spital. Nevertheless, Delaware State Ho spital and D PC are the same entity.

FN4. B fo llowed by a number refer to the pages in the plaintiff's four volume post-trial motions appendix.

FN2. Dr. Sylvester was part of the Motion for Summary Judgment, however, given the above stipulated dismissal, his involvement is irrelevant to the recitation of facts.

*2 The case procee ded to trial on March 29, 200 4, and took place over the course of four days. The jury returned a verdict in favor of Springer. He was awarded $998,895 in dam ages, b ut was no t reinstated to his

In 1991 Springer's billing rate was eighty dollars per hour. At some point it raised to ninety and at the time of his termination, his rate was ninety-three dollars per hour. (B037 1). His contracts stated that he would work 30 hours per week for 50 weeks, for a total of 1500 hours per year. (B 034 1). At ninety three dollars per hour, Springer's annual pay from the DPC was $139,500. (B034 0). W hen he bega n, his duties included being the Assistant Residency Training D irector. In 1993 he was promoted to the position of Residency Training Director. (B0348). In addition, Springer served as a me mbe r of the C redentials Committee [FN5] from 1993 to 2000. (B0386). He was also the Chairman of the M edica l Staff Executive Committee ("Executive Committee") from 1999 to 2000. (B0 387).

FN5.

The

C redentials

Co mmittee

is

a

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committee comp osed of physicians who conduct peer review of physician performance and the qualifications of physicians who apply for jobs or contracts. (B03 86).

unsafe cond itions for the staff as well as the patients. Id. The residents expressed a concern that the residency program was suffering as a result. Id. The memo received media attention and was the subject of a series of editorials. (B1158).

2. Events Leading up to Springer's Termination FN8. PX = Plaintiff Exhibit In 1996, the Delaware General Assembly amended the Delaware Procurement Act, 29 D el. C. ch. 69, to provide that all contracts for professiona l services exceeding $50,000 p er year must be subject to public bidding. (B083 0). The provision went unenforced at the DPC until early 2000, when Dr. Sylvester, Secretary of the DD HS S, instructed his d ivision d irectors to co mply with the Act and require public bidding on professional service contrac ts. DADA MH, a subdivision of DDH SS, oversaw the adm inistration of the Delaware Psychiatric Center (hereinafter the "DPC" or "hospital"). The defendant Renata Henry was hired as the Directo r o f D AD AM H in 1999. [FN6] (B0740). Her boss, Dr. Sylvester, began his term as the Secretary of DDHSS in October of 1997 and served in that cap acity until January of 2001. [FN7] (B022 2-0225).

*3 On November 23, 1999, a number of the DPC Medical Staff Executive Comm ittee officers echoed the residents' attempt to expose the conditions. They drafted a memo entitled "Critical Issues in the Care of the Mentally Ill in Delaware." (B11 58; PX 7). Springer was the President of the Committee at the time the letter was drafted . The memo w as addressed to the Governor, the DP C G overning Board, and Henry. (B115 8). The memo generally reiterated many of the same concerns expressed by the residents, in particular, the decline of the residency program. T he exe cutive Committee invited the DPC Go verning Body to sched ule a series of emergency meetings with it to discuss hiring teaching psychiatrists to save the residency program. (B115 8-59). In a prior ruling, the court already determined that this memo constituted speech protected under the First Amendm ent. (D .I. 47). On D ecem ber 2 , 199 9, a numbe r of Executive Committee Officers, including Springer, drafted another memo addressed " To W hom It May Co ncern." (B116 0). The memo expressed the Executive Com mittee's frustration with the lack of initiative on the administratio n's part to remedy the issues previously raised. (B1160). The signatories proposed a list of actions that "may begin us on the road to protecting and preserving patient care and safety." (B1160). On December 16, 1999 , Springer individually addressed the DPC Governing Body Members in a memo entitled "Proposed Agenda for December 22, 1999 Governing Body Meeting." (B1162). In this memo, on behalf of the medical staff, Springer outlined a proposed plan of action. (B1162-63). At some point following the initial memo by the residents, the Delaware News Jo urnal ran several highly critical articles about the DPC. In D ecember 19 99, the

FN6. Although she served as director of DAD AM H, M s. Henry is not a physician.

FN7. He started as Acting Cabinet Secretary of the DDHSS in October 1997, and was sworn in as the official Secretary in January 1998, under Governor Carper. (B0222-225)

On O ctober 21, 1999 , the DPC psychiatric residents drafted a memo to then Go vernor Carper, Dr. Sylvester, Dr. Springer, and other hospital staff, articulating their concerns regarding the egregious conditions of the DPC. (B1154-1157; PX1 [FN8]). They also sent the memo to the News Journal and the Department of Pub lic Safety. (B115 7). In the memo, the residents cited problems such as unde r-staffing, overcrowding, low morale, poor security, inadeq uate treatment, and overall

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federal Healthcare Financing Administration (FHA) threatened to withdraw 6.5 to 7 million d ollars in federal funding to the DPC. (B0234-37; B0297). Given the growing notoriety of the conditions at the hospital and the threat from the FHA to withdraw funding, Henry felt pressured to effect immediate improvements. (B0747-48; B0268). In response to the pressure, she requested temporary credentialing for a particular physician applicant. At trial, she testified that the DPC needed the physician ap plicant in order to m eet the federal requireme nts concerning the ratio of psychiatrists to patients. (B074 7). At first, Springer objected to cred entialing the physician ap plicant. Henry was frustrated with Springer because she felt he was obstructing the credentialing process. (B0274 ; B0301 ). On January 7, 2000, Springer was approached by Mr. Giarow Shimono ("Shimono"), the hospital director at the time, about credentialing the physician applicant on an emergency basis. (B0431). Springer told Shimono about his concerns regard ing the physician applicant. Springer testified that Shimono wanted to put the physician applicant on duty anyway. Springer had no authority himself to issue emergency credentials. (B0432-33). Springer informed Shimono that he had doc uments to support his concerns about the physician app licant. (B0434; B0438 ). He kept the documents at his home office. (B0435). The doc uments, drafted in 1997, included an email to "Dr. Smoyer or the credentials committee," a memo add ressed to the credentials com mittee, and "one was just a mem o to [Springer's] own file." (B043 5). Henry asked Springer to produce the documents. (B0435). In response, Springer wrote a letter to Henry dated January 7, 2000, advising her to consult with an attorney about whether Springer was permitted to disseminate the "peer review material." (B0436-37). As it turned out, the Attorney General's office co ncluded that Henry was allowed to view the materials. (B043 8). Sp ringer accordingly produced them. (B 0438). *4 On January 26, 200 0, Sp ringer d rafted a repo rt in preparation for a meeting with the Governing Body scheduled for January 29, 2000. (B1164 -74). H e did not, however, present the rep ort until March 21, 2000. (B1152; B1 164 -74). In the report, Springer alleged that the tension between the administrators and the medical

staff was causing physicians to pra ctice below their "minimal ethical standards." He threatened to notify regulatory agencies of the conditions in order for them "to intervene and demand improvements." (B1164). As well, he accused the administration of granting temporary privileges to a p sychiatrist in violation of med ical staff bylaws. (B1165). He said the ad ministr ation's action was pro mpte d by a n unannounced site visit from M edicare. (B1165 ). The court determined by way of summary judgment that this memo constituted speec h protected under the First Amendm ent. (D.I.47). The Cre dentialing Co mmittee met twice with regard to this particular applicant, on April 27 and May 2, 2000. Id. At the first meeting on April 27, three members of the Credentialing Committee voted to grant partial privileges to the physician applicant, two mem bers, including Springer, voted not to grant privileges. (B040 8-10). On May 2, 2000, the Executive Committee met to consider the recommendation of the Credentialing Comm ittee. (B0405-06). T he Executive Committee elected to grant the physician applicant partial privileges. (B041 3). Springer testified that Henry refused to sign the physic ian app licant's credentialing unless he was give n full unrestricted privileges. (B041 3). On M ay 12, 2000, H enry sent Springer a letter informing him that his contra ct with D AD AM H would not be renewed. (B1175). The letter indicated that D AD AM H would be publishing requests for pro posals and invited Springer to respond. (B1175). Springer testified that he did not receive the letter until May 15, 2000. (B042 4). The dea dline to submit a proposal was May 17, 2000 . (B1176 ). The request for proposals had been public since April 10, 2000, and the dea dline to ask questions about the bid was April 19, 2000, by 4:30 p.m. (B0429; B0774). Springer was only on notice of the request as of his receipt of Henry's letter on May 15. (B042 4). Springer asked Melody Lasana, DADAMH's Contract Manager, for an extension of the deadline. (B117 6). His request was denied. (B1176). 3. Post-Termination Springer asserts that the non-renewal of his contract

Cop r. © 20 04 W est. No C laim to Orig. U .S. Govt. Wo rks.

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Slip Copy 200 4 W L 21 271 72 (D.D el.) (Cite as: 2004 W L 212 7172 (D .Del.))

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was based on his comments to the Governor. Henry testified that the reason Springer was not automa tically renewed was because "not only were we under the gun at the hospital, but we also had just had a series of rulings in reference to how the department was doing contracts and indicating that we were out of compliance as we continued to renew, renew, renew, renew year after year after year without putting things out to bid. And this was department-wide as well as in the division that I stepped in to run." BO816 . She stated that she was unable to ask all of the independent contractor physicians to rebid in a single year. She testified that she chose Springer because to her knowledge there were no other physicians that had been there as long as he had without ever having been asked to rebid. (B081 7). *5 Springer alleges that he suffered losse s as a result of his termination and has been unable to find employment com parable to the work he did as Residency Training Director. Accordingly, he filed the present action against the defendant on October 6, 20 00. (D.I.1). At the conclusion o f the trial, the jury returned the following verdict. When asked if Springer pro ved by a preponderance of the evidence whether his protected activity was a substantial or motivating factor in the decision not to renew his contract, the jury answered, "Y es." (B1585). In particular, the jury found that plaintiff's exhibits two through five were the instances of protected activity that motivated the decision not to renew his contract. (B158 6). Exhibits two and five were Springer's memorandum d ated Novem