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Toussaint v. Brigham & Women’s Hospital

Superior Court of Massachusetts, Suffolk

August 20, 2018


          File Date: August 21, 2018


          Christine M. Roach, J.

          Following nearly four years of litigation and fourteen days of trial, [1] Plaintiff Gessy Toussaint obtained a jury verdict in her favor on one of the claims pleaded in her complaint. On May 23, 2018, after seventeen hours of deliberations, the jury returned a verdict for Toussaint against both Brigham and Women’s Hospital and nurse manager Mary Ann Kenyon on the claim of unlawful retaliation pursuant to Mass. G.L.c. 151B. The jury found in favor of the Defendants on Toussaint’s claim for race discrimination. The jury awarded Toussaint: $176, 000 in back pay damages; $287, 000 in front pay damages; $2.75M in emotional distress damages; and $25M in punitive damages, for a total award of $28, 213, 000.00.

         Final judgment awaits a ruling on statutory attorneys fees. As of July 11, 2018, issue was joined by the parties’ pleadings.[2] Following thorough review of the voluminous file and all relevant pleadings, and based on my extensive familiarity with the record as trial judge, the Petition is ALLOWED, in the amounts and for the reasons stated below. I decline in my discretion to grant the hearing sought by the Defendants, as I find that the written pleadings constitute more than sufficient basis for ruling on fees, and oral argument by the parties will add nothing material to the required analysis.

         The Petition and the Opposition

         The Petition seeks attorneys fees in the amount of $437, 520.00, and costs in the amount of $14, 570.85, for work performed during the period November 2013 through May 2018. The calculation is based on an hourly rate of $600 per hour, for 729.2 hours of work. Paper 108.

         Defendants oppose the Petition on three primary grounds: They argue the hourly rate is unjustified and unsupported by rates for comparable lawyers in the Boston legal community; they argue the hours should be further reduced for work performed on behalf of the (as yet, untried) co-plaintiff, Nirva Berthold;[3] and they argue for a "25% global reduction" in fees for unsuccessful or untried claims. Paper 109.

         Having examined all of the records independently for the reasonableness of the requested fees, I rule as follows. Haddad v. Wal-Mart Stores, Inc. (No. 2), 455 Mass. 1024, 1025 (2010) (rescript); Twin Fires Investment, LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 429-32 (2005); Berman v. Linnane, 434 Mass. 301, 302-03 (2001) (factors to be considered; no one factor determinative; factor-by-factor analysis not required); Fontaine v. Ebtec Corp., 415 Mass. 309, 324-26 (1993) (endorsing the lodestar method for Chapter 151B cases); Linthicum v. Archambault, 379 Mass. 381, 388-89 (1979).

         Hourly Rate

          Defendants challenge the reasonableness and appropriateness of the hourly rate of $600 on two grounds. First, they argue that Attorney MacLellan charged and petitioned for a significantly lower hourly rate in a prior discrimination case in Superior Court. It is undisputed that in March 2016, in the case captioned Avila v. Levy Restaurants, Inc., Civil Action No. 2013-112, Attorney MacLellan petitioned the court for an hourly rate of $350. The timeframe involved in that case was September 2013 through March 2016, a period which obviously overlaps in part with MacLellan’s work here. Defendants argue MacLellan’s "representations regarding her hourly rate in the Avila case are inconsistent with and do not support her request for a significantly increased hourly rate in this litigation." Opposition (Paper 109), at page 5. They request that her rate for this case be reduced to the Avila rate, at least through the Avila end date of March 2016. Id.

         In response MacLellan argues that she simply undervalued her time in Avila, later learned of higher prevailing rates approved by courts in similar cases, and has since corrected that undervaluation. On this point, MacLellan has the better argument. Though replete with legal authority, the Opposition conspicuously fails to support this portion of the defendants’ challenge with precedent binding on this court. Contrary to the reported analysis of certain federal judges in Massachusetts, I fail to see why counsel’s choice of fee in prior litigation, for a different client, should control as a ceiling on the court’s determination of reasonableness here, and I decline to consider the $350 hourly rate in that manner.

         Of far more importance as a matter of law is an assessment of the objective reasonableness of the $600 hourly rate, based on the time-honored state law factors. In this respect I agree with the Defendants that one factor is counsel’s expertise and experience in the particular type of litigation at issue. Defendants suggest that MacLellan’s experience is limited because she has only been trying civil discrimination cases for less than a decade. Opposition, at page 7. Selected federal case law again notwithstanding, I am not persuaded that should be a weighty factor in the rate itself. While specific experience may impact the hours required to accomplish certain tasks, I have seen no evidence in the preparation or trial of this matter that MacLellan’s other areas of practice detracted from her performance in this case, or factored as a limitation on or diminishment of her expertise in the area of employment discrimination. To the contrary, MacLellan’s experience trying criminal cases likely enhanced her performance here.

         That said, for whatever market reasons, employment trial lawyers in the Boston region charge somewhat less per hour than do their business litigation peers. I agree that the data presented by both sides in this case demonstrate $600 per hour is at the high end of prevailing rates within the employment bar, for counsel of MacLellan’s years of varied experience under similar circumstances. Based on the information available to me, I find a reasonable hourly rate to be ...

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