Health. Elementis states that it is not familiar with how this
item could be related to the case. Kaufhold & Associates have not
responded to this contention. Therefore, the Court will strike the cost
from the bill.
Given these deductions and the discount in Griffeth's rate, Kaufhold &
Associates fees total $26,364.30. However, Elementis seeks a one-half
reduction of Kaufhold & Associates' total fees for time spent working on
the state law claim (Count II) under which they are not entitled to an
award of attorneys' fees. The Court agrees that a reduction must be made
but disagrees that it should simply cut the bill in half. For instance,
when Tart's attorneys were required to appear in Court, the Court is
certain that the time was not doubled merely because they were also there
with regard to Count II. However, it is impossible to glean the exact
amount of time spent on Count I versus time on Count II with
specificity. Therefore, the Court believes a general reduction of Kaufhold
& Associates' fees by 20% to account for their work on Count II is fair
and reasonable. Accordingly, the Court GRANTS Kaufhold & Associates'
motion for attorneys' fees and costs (Doc. 133) and AWARDS Kaufhold &
Associates attorneys' fees in the amount of $21,890.00 and costs in the
amount of $3,026.16 under Count I.
B. Edward J. Szewczyk, Jr.
Edward J. Szewczyk, Jr. of Callis, Papa, Jackstadt & Halloran, P.C.
entered his appearance as Tart's attorney ten days before the trial
began. Szewczyk seeks fees at a rate of $275 per hour and produces a bill
which shows he expended 229.1 hours to prepare and try the case.
However, he seeks a 50% upward adjustment given the time constraints
under which he prepared the case, his work at nights and on weekends to
the exclusion of all other work, and the complexity of the case. He also
seeks $3,318 in law clerk fees and $3,042.99 in costs. Elementis concedes
the number of hours Szewczyk billed and concedes his law clerk's fees.
However, Elementis disputes Szewczyk's hourly rate and costs and requests
that the Court reduce his fees by 50% to account for his work on the
state law claim (Count II).
The Court first addresses Szewczyk's hourly rate. Elementis contends
that since Szewczyk and Kaufhold's levels of experience are virtually
identical, Szewczyk's rate should be reduced to $150 per hour. The Court
disagrees. Although the Court is unaware of the rate at which defense
counsel were billed, Tart's submission of the St. Louis Business Journal
Book of Lists, 2001 Edition, shows that their firm's hourly fees can
reach up to $335 per hour. Elementis does not contest this.
Additionally, the Court finds, as Szewczyk pointed out in support of his
argument for an upward adjustment, that he had only ten days in which to
prepare for the trial of a very complicated case which required many hours
at nights and on weekends to the exclusion of all other work. Therefore,
the Court finds that $275 per hour for Szewczyk's work is a reasonable
hourly rate. However, the Court declines to award Szewczyk an upward
adjustment of fees.
The Court next evaluates Szewczyk's costs. Elementis asks the Court to
discount expert witness fees for Dr. Walter Heidke and Dr. Leroy Grossman
because they were not identified as expert witnesses. The Court
disagrees. Although Dr. Heidke was not retained by Tart as an expert
witness, he was disclosed as a non-retained expert chiropractor who
treated Tart. The Court finds his testimony was material, relevant, and
reasonably necessary to the case. See Rank v. Balshy,
590 F. Supp. 787, 801 (M.D.Pa. 1984). As such, the cost
of his fees is appropriate and taxable against Elementis.
It is premature, however, to determine if Dr. Grossman's fees are
appropriate. Dr. Grossman has been retained as an expert economist since
the trial of this case to provide evidence in support of Tart's request
for Court-decided equitable relief such as back and front pay. His
testimony has not been provided to the Court Therefore, the Court is
unable to determine if his testimony is material, relevant, and
reasonably necessary to the case so as to warrant the payment of his
fees. This issue will be addressed if and when Dr. Grossman is deposed
and his testimony is provided to the Court.
Finally, Elementis seeks a one-half reduction of Szewczyk's fees for
time spent working on the state law claim under which he is not entitled
to an award of attorneys' fees. For the reasons stated above, the Court
reduces Szewczyk's fees by 20% to account for his work on Count II.
Accordingly, the Court AWARDS Edward J. Szewczyk, Jr. attorneys' fees
in the amount of $66,320.50 and costs in the amount of $2,142.99 under
IT IS SO ORDERED.