In substance this is about whether to award punitive damages but, as usual, the parties and the court spend more time and effort on costs and fees.
The plaintiff was a patient at the defendant hospital after a motorcycle accident rendered him quadriplegic. While there he developed a bedsore and sued under the Adult Protective Services Act. At trial the court granted the hospital’s motion for directed verdict (that’s what the opinion calls it, we’re happy to say; it also minimizes the use of “APSA”; maybe there’s beginning to be some pushback against the vogue for meaningless acronyms) on punitive damages. The jury returned a verdict for the plaintiff and the trial court awarded him costs and fees. He appeals the directed verdict and also the costs and fees (arguing that he didn’t get enough); the hospital appeals the fee award.
As to punitive damages the Court of Appeals reverses. The plaintiff argued that the evidence of evil mind was that the staff “had been ordered to reposition [him], clean his wound, and administer medication, and they understood the importance of these precautions and the risk of improper care of pressure sores, and yet they failed to follow these orders” over the course of a week or more. After summarizing some evidence, which basically confirms that quote, the court agrees, without explanation. Where and how did that – which seems to cover the basics of negligence – cross the line to evil mind? Maybe it’s the length of time, which the court does describe when reviewing the facts. Maybe it’s that, though the court alludes to it only in passing, the defendant is a long-term acute-care facility, i.e., makes its money precisely by housing the bedridden after our sensitive and caring health-care overseers have decided that a longer stay in a real hospital would cost them too much. In any event, the court doesn’t say.
On attorneys’ fees the court affirms. The Protective Services statute provided for them when the accident happened but not by the time of trial. (We simplify a bit, skipping another intervening but ultimately irrelevant statutory change.) The court concludes that the right to fees is substantive and therefore accrued when the negligence occurred. From what the opinion says it appears that the hospital relied on cases for the proposition that the right to fees from an existing recovery fund doesn’t accrue until the entry of the underlying judgment, which the court has no trouble distinguishing.
The trial court awarded the 45% contingency called for in the plaintiff’s fee agreement. His attorneys wanted instead a $400 per hour ($300 for the associates) fee based on “reconstructed” or “partially reconstructed” time records and “generic” affidavits (presumably the “I do this sort of work and that’s a reasonable fee” type). The plaintiff’s lawyers argued in essence – judging, again, by what the opinion says – that it was the defendant’s or even the trial court’s burden to disprove the details of the fee claim. The opinion affirms, saying yet again that that’s wrong and upholding the trial court’s findings that the time “records” were not “reasonably contemporaneous or trustworthy,” that neither the experience of these lawyers nor the “complexity” of a bedsore case warranted $300/$400 per hour, but that the contingent figure was in this case reasonable. It couldn’t have helped that the requested hourly fee far exceeded the plaintiff’s recovery. And of course courts aren’t likely to waste much sympathy on lawyers who in this day and age still don’t keep their time properly in every case with a possible fee award. China Doll was 33 years ago.
Finally, as to costs, the Adult Protective Services statute (at 46-455(H)(4)) allows “costs of suit.” The trial court awarded taxable costs. The plaintiff argued that since the statute doesn’t say “taxable” the award should have been for all actual costs because the statute protects the sick and elderly and helpless and so should be applied broadly and liberally and remedially and etc., etc. The Court of Appeals declines to go that far. The cost statute (12-332) defines “costs in the superior court,” not a special subdivision of those costs called “taxable,” and the courts therefore look to it to it to determine – you guessed it – “costs in the superior court.” The court finds nothing in the Protective Services statute to indicate that the legislature intended to expand on that. The lawyers apparently also tried to make some distinction between “costs of suit” and mere “costs”; the court says that “of suit” does not change the meaning of “costs” and is there because that paragraph speaks of private lawsuits whereas the next one deals with government regulatory actions. That last part is perhaps a bit of a reach but, as the court quotes from the Supreme Court, “a liberal construction is not synonymous with a generous interpretation.”
The court remands on punitive damages and awards the plaintiff his costs and fees on appeal. Presumably his lawyers won’t again need to “reconstruct” them, or can at least do so more convincingly. The parties will now argue below about the scope of the new trial, which will give them reason to bring this one back up some day for our renewed enjoyment.
Arizona Appellate Blog 