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Lash v. Hollis: FEES - insufficent evidence of causation where multiple causes; attorney's fees award remanded

United States Court of Appeals
Nos. 07-2356/3066
David Lash, Sr., *
Plaintiff - Appellant, *
David Lash, Jr., *
Plaintiff, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Michael Hollis, in his official and *
individual capacity; Adam Swon, in *
his official and individual capacity; *
Anthony Bowne, in his official and *
individual capacity; John Kirkpatrick, *
in his official and individual capacity, ** Defendants - Appellees. *
Submitted: March 14, 2008
Filed: May 13, 2008
Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Plaintiff David Lash, Sr., (Lash Sr.) achieved partial success in a civil rights
action involving injuries he sustained during an arrest. A jury awarded him ,000
in damages, and the district court awarded him ,616 in attorney fees. He now
1Lash Sr. had severed the tip of his finger in a construction accident. To
alleviate his pain, he smoked marijuana, took over-the-counter pain pills, and took
what was described to him as prescription pain medication belonging to another
person later learned to be Gabitril an anti-seizure medication.
appeals the fee award alleging error in the district courts determination of a
reasonable fee. He also appeals the district courts denial of a motion for a new
damages-phase trial. We affirm the denial of the motion for a new trial, but vacate the
attorney fee award and remand for reconsideration of the fee award.
I. Background
Lash Sr.s family members and neighbors restrained him and called police after
he took a large amount of the prescription anti-seizure medicine Gabitril and started
acting violently.1 His family reported that he had taken 5060 Gabitril pills in the
prior 23 days and that he claimed to have taken like 15 pills and smoked some
joints before becoming violent. Family members and neighbors restrained Lash Sr.
by pushing him into a plaster wall and then holding him down against the floor. They
pushed him into the wall with sufficient force to create an indentation in the wall.
When police arrived, the officers noticed that Lash Sr. was bleeding from the
mouth. Lash Sr. was combative, and at one point he threw an officer off of his back.
In attempting to subdue Lash Sr., one officer applied a choke or strangle hold to Lash
Sr.; another officer sat on Lash Sr.s legs; and a third officer restrained Lash Sr. by
holding his arms behind his back with a baton. When Lash Sr. was restrained on his
stomach on the floor, Officer Michael Hollis shocked him with a Taser six times by
using the Taser in drive-stun mode and pressing the Taser into his back. Hollis also
shocked Lash Sr.s son, Lash Jr., once with the Taser. The officers then took Lash Sr.
to a hospital where he received treatment. Photos of Lash Sr. en route to the hospital
show numerous fresh bruises on his back that his family claim were not present before
officers arrived.
At the hospital, Lash Sr. was uncooperative and combative and had to be
sedated. The treating physician admitted Lash Sr. for a Gabitril overdose and
determined that Lash Sr. was suffering from acute onset kidney failure. The treating
physician put him on dialysis, and this treatment eventually restored his kidney
function. The treating physician diagnosed Lash Sr.s kidney failure as having been
caused by rhabdomyolysis, a condition that may occur when muscle tissue breaks
down and releases substances into the bloodstream that overwhelm the kidneys.
Rhabdomyolysis reportedly can be caused by many factors, including but not limited
to drug use or trauma by electrical charge or physical force.
Plaintiffs Lash Sr. and Lash Jr. subsequently sued many parties, including
Hollis and the three officers who physically restrained Lash Sr. Plaintiffs alleged
battery and civil rights violations. Plaintiffs also sued a municipal defendant and the
Taser manufacturer, Taser International, but Plaintiffs moved to dismiss the claims
against the municipal and corporate defendants with prejudice prior to trial. Plaintiffs
sought damages in the form of lost wages, physical and emotion pain and suffering,
and medical expenses, including over ,000 in dialysis and kidney-related medical
Plaintiffs offered Christopher Long, Ph.D. as an expert on the issue of whether
the Taser discharges were a cause of Lash Sr.s rhabdomyolysis. Defendants offered
their own expert who sought to opine that an overdose of Gabitril caused
rhabdomyolysis. Defendants moved to exclude Longs testimony. Before the trial,
the district court granted Defendants motion to exclude the Taser portion of Longs
testimony, finding: (1) Long had no experience with Tasers or Taser injuries; (2) he
had no knowledge or experience regarding the Taser at issue in this case; and (3) he
appeared to have based his expert opinion solely on the review of one scholarly
2Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
At trial, Plaintiffs again attempted to place before the jury the issue of the Taser
as a cause of Lash Sr.s rhabdomyolysis. Plaintiffs subpoenaed Lash Sr.s treating
physician, a kidney specialist, who opined that the prescription drug Lash Sr. had
taken did not cause kidney failure. The treating physician also testified generally that
muscle trauma was the likely cause of rhabdomyolysis and the eventual kidney failure
in Lash Sr. The treating physicians testimony as to causation was as follows:
Q. All right. And in your assessment, did you diagnose what was the
cause of the injuries that resulted in the acute kidney failure to Mr.
A. My diagnosis was Rhabdomyolysis. Rhabdomyolysis is a
condition where a muscle is injured and it releases a pigment from
inside the muscle in the bloodstream that goes into the kidneys as
it filters the blood and causes acute kidney failure.
Q. And did you diagnose what you believed caused the
A. I believe some sort of trauma caused the Rhabdomyolysis.
Q. And can you explain to me what trauma?
A. Trauma could be any physical blow or burn, electrical charge
At the close of Plaintiffs case, Defendants moved for judgment as a matter of
law on the issue of whether the Taser discharge caused Lash Sr.s kidney failure.
Plaintiffs argued that the treating physicians testimony was adequate to create a jury
question as to whether Lash Sr.s kidney failure was a secondary injury caused by the
Taser. The district court disagreed with Plaintiffs and granted Defendants motion.
Referencing its earlier ruling on the Daubert2 motion and the exclusion of Longs
testimony, the district court stated, The Taser causation is not in this case. The
court ultimately concluded:
3Lash Sr. also challenges the exclusion of certain testimony regarding emotional
distress. We have considered Lash Sr.s arguments on this issue, find them to be
without merit, and do not discuss them further.
I did not hear you ask anything about to a reasonable degree of medical
certainty. You put him on as a treating physician, which may be why
you didnt ask, but we dont have an expert whoany other expert or any
other medical person whom you qualified as an expert capable of
testifying to that. So I think on that basis, the kidney damage is out of
this case for insufficient evidence.
Regarding the claims by Lash Sr., the jury returned defense verdicts for the
three officers who used physical force against Lash Sr., but returned a verdict for Lash
Sr. against Hollis based on Holliss use of the Taser. The jury awarded Lash Sr.
,000 in damages on his claim against Hollis. The jury returned defense verdicts as
to all claims by Lash Jr.
Lash Sr. moved for a new damages-phase trial, arguing that the issue of the
Taser as a cause of kidney-failure and evidence of over ,000 in kidney-related
medical bills should have been submitted to the jury. The district court denied his
motion, and he appeals.3 Lash Sr. submitted a claim for attorney fees, seeking
approximately 0,000. The district court granted fees in an amount substantially
below this request. We discuss additional details regarding the fee award below.
II. Discussion
A. Motion for New Damages-Phase Trial
We review a district courts evidentiary rulings . . . and denial of a new trial
for abuse of discretion, according substantial deference to the district courts rulings.
Ferguson v. United States, 484 F.3d 1068, 1074 (8th Cir. 2007). Here, the jury found
liability only as to Defendant Hollis and not as to any other defendants. Further, Lash
Sr. moved for a new trial only as to the damages phase; he argued it was improper to
preclude the jury from considering the Taser as a cause of his kidney failure and
assessing damages for his kidney-related medical expenses.
Given the jurys specific finding that Hollis was the only defendant liable to
Lash Sr., and given Lash Sr.s limited request for relief, we must focus on evidence
tending to show a causal relationship between Holliss actions and Lash Sr.s kidney
failure. Beyond Holliss use of the Taser, there was no evidence that Hollis struck or
otherwise exercised violence against Lash Sr. Accordingly, we must determine
whether the jury could have found by preponderant evidence that Holliss action in
discharging the Taser induced rhabdomyolysis in Lash Sr. or whether the district court
improperly excluded evidence that would have created a triable question of fact on
this issue. We believe the district court correctly determined that the evidence was
insufficient for such a showing, and the district court did not err in excluding any
evidence that might have assisted Lash Sr. on this point. In light of these conclusions,
we find no abuse of discretion by the district court in denying the motion for a new
damages-phase trial.
There was no expert testimony or other evidence tending to show that the Taser
discharge in this case could have induced rhabdomyolysis or contributed to Lash Sr.s
rhabdomyolysis. The treating physicians testimony was general in nature. He stated
that kidney-damaging rhabdomyolosis was caused by some sort of trauma that could
have been any physical blow or burn, [or] electrical charge trauma. The treating
physician did not testify specifically that the shocks applied by Hollis were the cause
or partial cause of the rhabdomyolysis, what amperage or voltage would be required
to induce rhabdomyolysis, or whether the Taser at issue was capable of such a release.
Further, even if the treating physician had specifically opined that the Taser
discharges caused rhabdomyolysis in Lash Sr., the physician offered no explanation
of a differential diagnosis or other scientific methodology tending to show that the
Taser shocks were a more likely cause than the myriad other possible causes
suggested by the evidence. Family members and neighbors had subjected Lash Sr. to
physical trauma prior to arrival of the officers, as shown by the dented wall and Lash
Sr.s bleeding mouth. The officers whom the jury found not liable had used force on
Lash Sr. Also, Lash Sr. recently had taken large doses of Gabitril in combination with
marijuana. Given these facts, any claim that the Taser induced rhabdomyolysis would
appear to be based on mere speculation.
Lash Sr. argues, nevertheless, that we should excuse this absence of proof and
treat the present case as a res ipsa-type case under the Missouri sudden onset
doctrine. Lash Sr. argues that because Hollis purportedly was fine before the officers
arrived, but was bruised and suffered kidney failure after the altercation with the
officers, it would have been permissible to let the jury infer that the Taser discharges
caused the rhabdomyolysis. See, e.g., Ridpath v. Pederson, 407 F.3d 934, 935 (8th
Cir. 2005) (describing Missouris sudden onset doctrine and stating, The most
obvious cases for . . . the doctrine . . . are those where a person is involved in a violent
accident and sustains [an obvious injury such as] a broken bone, or an open wound.).
This argument fails for a number of reasons. First, there was no evidence to show that
Lash Sr.s kidneys were in good working order immediately prior to the officers
arrival. There was, however, evidence that he had taken an overdose of an antiseizure
medicine in combination with marijuana and was acting in an unusual and
violent manner before police arrived, suggesting a possible medical problem at the
outset. Second, this argument ignores the evidence regarding violence against Lash
Sr. before the police arrived that resulted in a dent in a plaster wall and left Lash Sr.
bleeding from the mouth. Further, this argument ignores the fact that the physical
trauma to Lash Sr. from the three officers other than Hollis could have induced
rhabdomyolysis, and the jury found their application of force to Lash Sr. to be nonactionable.
In this instance, then, the evidence suggested multiple possible causes for
Lash Sr.s injuries rather than one alleged event preceding the harm, as would be
required for application of the sudden onset doctrine.
More importantly, though, rhabdomyolysis is not an obvious result of the
application of force, and, therefore, is not the sort of injury or condition known by lay
persons to flow naturally from a physical or electrical charge trauma. Missouris
sudden onset doctrine is only appropriate for use in cases involving injuries whose
cause might be obvious to a lay person. See id. at 936 (refusing to apply the doctrine
where a battery was alleged to have aggravated a pre-existing intestinal disorder
because aggravation of such a disorder was not an obvious result within the scope of
a lay persons understanding). Given the multiple possible causes of Lash Sr.s
kidney failure, and the complex and uncertain chain of causation involving muscle
degradation and the release of substances to overwhelm the kidneys, it would not have
been appropriate to permit jurors to sort through causation without specific and
detailed expert testimony.
To the extent Lash Sr. ties his motion for a new trial to the earlier exclusion of
his expert witness, Christopher Long, Ph.D., we find that the district court acted well
within its discretion in excluding the witness. Long had no experience with Tasers,
Taser injuries, or the specific Taser at issue in this case. Further, even if it had been
improper to exclude Long, there is no suggestion, in an experts report or other offer
of proof, that testimony from Long would have remedied the omissions in Lash Sr.s
B. Attorney Fees
Regarding the fee award, Plaintiffs submitted a fee request for about 0,000.
Through line item strikes as to specific time entries and a substantial downward
adjustment to the hourly rates for the plaintiffs attorneys and a paralegal, the district
court brought the fee amount down to about ,000. The court then cut this figure
in half to ,000 based on the fact that there were two plaintiffs, but only one of the
plaintiffs prevailed. The court then further divided this resultant amount by four to
about ,000 based on the fact that the single prevailing plaintiff prevailed against
only one of the four defendants at trial.
We find no abuse of discretion in the line item cuts that brought the fee award
from 0,000 to ,000. These cuts represent a typical exercise of discretion where
the district court is better positioned than the appellate court to understand what
services were reasonable and what hourly rates were appropriate in the relevant
market. The court classified certain hours as related exclusively to the claims against
Taser International or the municipal defendants (whom Lash Sr. agreed to dismiss
with prejudice prior to trial). The court struck other hours as being insufficiently
explained in the affidavits and other evidence.
The cuts from ,000 to ,000, however, were global cuts rather than
line item cuts. The district court based these global cuts on a characterization of
Lash Sr.s degree of success in this case that involved sequential reductions of 50%
and 75% based solely on the number of successful and unsuccessful claims. Such a
method is, in general, not appropriate. See Hensley v. Eckerhart, 461 U.S. 424, 435
n.11 (1983) (We agree with the . . . rejection of a mathematical approach comparing
the total number of issues in the case with those actually prevailed upon. Such a ratio
provides little aid in determining what is a reasonable fee in light of all the relevant
factors. (internal quotation and citation omitted)). Had each plaintiffs claim against
each defendant involved entirely separate legal questions or depended on separate
issues of fact, such a method for assessing the reasonableness of fees might have been
permissible. See Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001) (When a
plaintiff has prevailed on some claims but not on others, the plaintiff may be
compensated for time spent on unsuccessful claims that were related to his successful
claims, but not for time spent on unsuccessful claims that were distinct in all respects
from his successful claims. (quoting Hensley, 461 U.S. at 440)). We cannot
determine from the present record, however, whether the district court considered the
relationship between the plaintiffs successful and unsuccessful claims, or considered
that common questions of law and fact existed among the claims by the two plaintiffs
against the four defendants. See Emery, 272 F.3d at 1046 (Claims are related, and
hence deserving of compensation, if they involve a common core of facts or are
based on related legal theories. (quoting Hensley, 461 U.S. at 435)).
The resultant award of approximately ,000, based on the hourly rates set by
district court, added up to 50.55 hours by one attorney, 12.04 hours by a second
attorney, 8.38 hours by a paralegal, and 9.0 hours by a third attorney, for a total of
about 80 hours. On its face, it seems this fee award may represent an inadequate
amount of time to investigate, prepare, brief, and try a civil rights case involving
multiple defendants, complex issues of causation, and actual physical injuries. That
is not to suggest a district court is bound to award a fee commensurate in scope with
what a prevailing party might have paid on a non-contingent basis. See Hensley, 461
U.S. at 434 (The product of reasonable hours times a reasonable rate does not end the
inquiry.). Rather, [t]he most important factor in determining what is a reasonable
fee is the magnitude of the plaintiffs success in the case as a whole. Jenkins v.
Missouri, 127 F.3d 709, 716 (8th Cir. 1997) (en banc); see Hensley, 461 U.S. at 436
([T]he product of hours reasonably expended on the litigation as a whole times a
reasonable hourly rate may be an excessive amount. This will be true even where the
plaintiffs claims were interrelated, nonfrivolous, and raised in good faith.).
The actual monetary damages awarded to Lash Sr. were only ,000, and it is
possible the district court viewed this award as a nominal amount when compared to
the relief the two plaintiffs initially sought. See, e.g., Ways v. Lincoln, Neb., 274 F.3d
514, 517 (8th Cir. 2001) (affirming a First Amendment case in which [t]he court
granted . . . a permanent injunction and nominal damages of .00, as well as
,693.10 in attorney fees and 0.14 in costs); Burks v. Siemens Energy &
Automation, Inc., 215 F.3d 880, 88283 (8th Cir. 2000) (Although the technical
nature of a nominal damages award or any other judgment does not affect the
prevailing party inquiry, it does bear on the propriety of fees awarded [in that it affects
the degree of success inquiry]. (quoting Farrar v. Hobby, 506 U.S. 103, 114
(1992))). The district court, however, did not expressly rely on this basis when setting
the attorney fee.
Further, we note that a plaintiffs success in a civil rights case can be measured
only in part by monetary success. As such, dramatic reductions in fee awards are not
always required simply because the actual damage award is small or nominal.
Lawsuits like the present case provide a forum for exposing official misconduct.
Hopefully, this exposure helps induce governmental entities to institute policies
protective of civil rights. Emery, 272 F.3d at 1046 (Congress intended to promote
diffuse private enforcement of civil rights law by allowing the citizenry to monitor
rights violations at their source, while imposing the costs of rights violations on the
violators. (quoting Casey v. Cabool, 12 F.3d 799, 805 (8th Cir. 1993))). The risk
of such lawsuits also provides an incentive to ensure adequate training and supervision
of personnel. Although these benefits enure to society in general, we believe a court
assessing a particular plaintiffs relative degree of success may consider these nonmonetary
effects along with the personal monetary award a plaintiff receives. See
Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir. 2000) ([S]uccess may
nonetheless be considered significant, in light of the fact that the . . . verdict . . . not
only serve[d] to vindicate important personal rights as envisioned by the statute, but
also [to] further the publics interest in providing a fair playing field . . . . (quoting
Shrader v. OMC Alum. Boat Group, Inc., 128 F.3d 1218, 1222 (8th Cir.1997))).
We make no further comment as to the propriety of the exact fee award the
court reached herein. On remand, the court should consider the relationship between
the successful and unsuccessful claims and also the overall degree of success obtained
by Lash Sr. To the extent the submissions regarding attorneys time entries are
insufficiently specific to differentiate between claims, the consequences of such a
shortcoming rests with the prevailing party. See Hensley, 461 U.S. at 437 n.12
([W]e would not view with sympathy any claim that a district court abused its
discretion in awarding unreasonably low attorneys fees . . . if counsels records do
not provide a proper basis for determining how much time was spent on particular
claims. (quoting Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978))).
We affirm the denial of the motion for a new trial and remand for
reconsideration of the fee award.


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