Arthur Ray Bowling, et al.,

Jeffrey A. Crane; Gene Randall;
Gerard Benedik,

Waite, Schneider, Bayless & Chesley
Company, L.P.A.; John T. Johnson;
James T. Capretz,
No. 97-3369

Pfizer, Inc.; Shiley, Inc.,

Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 91-00256--S. Arthur Spiegel, District Judge.

Argued: October 29, 1997

Decided and Filed: January 5, 1998

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Bowling, et al. v. Pfizer, Inc., et al.
No. 97-3369

Before: MARTIN, Chief Judge; KRUPANSKY and DAUGHTREY, Circuit


Washington, D.C., for Appellants. Stanley M. Chesley, WAITE,
SCHNEIDER, BAYLESS & CHESLEY, Cincinnati, Ohio, for Appellees.
ON BRIEF: Brian Wolfman, Alan B. Morrison, PUBLIC CITIZEN
LITIGATION GROUP, Washington, D.C., for Appellants. Stanley M.
Chesley, WAITE, SCHNEIDER, BAYLESS & CHESLEY, Cincinnati, Ohio, for


BOYCE F. MARTIN, JR., Chief Judge. This matter is making a
repeat visit to the Sixth Circuit and has been the subject of
numerous district court opinions. The remarkable aspect of this
outpouring of judicial resources is that much of it occurred after
the case settled. The bulk of the federal court oversight in this
case has concerned attorneys' fees, and we now write again on this

This litigation concerns attorneys' fees relating to a
settlement reached in a class action suit filed by recipients of
allegedly defective heart valve implants. At issue is the first of
ten annual payments to the class and special counsel for their work
implementing the settlement. Counsel applied for $712,987.75. The
district court awarded them $625,000 and set future payments at
$625,000 annually. Several class members appealed, arguing that
the award was too high and that the district court did not have the
latitude to set fees prospectively. We find that the district
court erred in

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Bowling, et al. v. Pfizer, Inc., et al.
No. 97-3369

awarding counsel $625,000, both for the fee application at issue
and for future years, and we reverse and remand to the district


This class action involved living valve implant recipients
(approximately 50,000 in the spring of 1996) and their spouses, who
sued Pfizer, Inc., the parent company of implant manufacturer
Shiley, Inc. The parties reached a tentative settlement in early
1992 before any significant motions were decided. On August 19,
Judge Spiegel of the Southern District of Ohio approved the
settlement on a world-wide class basis. Bowling v. Pfizer, Inc.,
143 F.R.D. 141 (S.D. Ohio 1992). The Sixth Circuit dismissed the
final appeal regarding the settlement on March 15, 1994, and the
Supreme Court denied certiorari on October 3. Ridgeway v. Pfizer,
Inc., 513 U.S. 916 (1994). "Final Approval of the Settlement"
occurred at that time.

The settlement called for Pfizer to pay into three main funds:
the Patient Benefit Fund ($75 million), the Medical and
Psychological Consultation Fund ($80 to $130 million, depending on
the number of claims), and the Fracture Compensation Mechanism
($500,000 to $2 million for each U.S. claimant). Pfizer also made
a $10 million payment to the Spousal Compensation Fund. Pfizer
made initial payments of $80 million to the Medical and
Psychological Consultation Fund and $10 million to the Spousal
Compensation Fund. Pfizer initially contributed only $12.5 million
to the $75 million Patient Benefit Fund with the remainder to be
paid in $6.25 million annual installments from 1996 to 2005.

The settlement involved a number of different attorneys and
firms. The class counsel is Waite, Schneider, Bayless & Chesley
Co., led by Stanley Chesley. Although the Chesley firm does some
legal work for the class, the bulk of its effort appears to be
directed toward implementation and administration of the
settlement. Special counsel John Johnson concentrates on studying
which valves are likely to

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Bowling, et al. v. Pfizer, Inc., et al.
No. 97-3369

fracture, and special counsel James Capretz has an emphasis on
valve replacement guidelines. The Public Citizen Litigation Group
has placed itself in a watchdog role on behalf of the plaintiff
class. Although the court has awarded attorneys' fees and expenses
to Public Citizen $105,037.46 from the initial settlement and
$51,129.86 for the period at issue Public Citizen's role in the
case generally has been to contest class and special counsel's fee
requests. Public Citizen fought class and special counsel's
original fee request and argues that the class and special
counsel's recent award of additional fees should be reduced.
Public Citizen represents class member-intervenors Jeffrey A.
Crane, Gene Randall, and Gerard Benedik (Crane).

Class and special counsel made an initial request for a lump
sum payment of $33 million, 20 percent of what they claimed was a
settlement worth at least $165 million. On March 1, 1996, Judge
Nangle, sitting by designation in the Southern District of Ohio,
found that $102.5 million had been paid into the common fund and
awarded class and special counsel $10.25 million (ten percent of
the common fund) as well as expenses of $476,938.06. Bowling v.
Pfizer, Inc., 922 F. Supp. 1261 (S.D. Ohio 1996).

Judge Nangle made provisions for future attorneys' fees from
the ten annual $6.25 million payments Pfizer was scheduled to make
to the Patient Benefit Fund. Recognizing that there would be
continuing administrative responsibilities for counsel, Judge
Nangle awarded counsel yearly expenses and fees of up to ten
percent of the $6.25 million annual payment. Counsel were
instructed to apply for their annual fees within thirty days of
Pfizer's deposit into the Patient Benefit Fund. The Special
Masters/Trustees (trustees) would then make a report and
recommendation to the district court judge, and the judge could
deny or grant, in whole or in part, counsel's application.
Finally, Judge Nangle noted that future fee applications would be
handled by Judge Spiegel. On May 24, Judge Nangle issued an order
on a motion for reconsideration of attorneys' fees in which he
adjusted expenses but otherwise upheld the award. Bowling v.

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Bowling, et al. v. Pfizer, Inc., et al.
No. 97-3369

Inc., 927 F. Supp. 1036 (S.D. Ohio 1996). The Sixth Circuit
affirmed Judge Nangle's initial fee award and subsequent funding
scheme. Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996).

The dispute now before us concerns class and special counsel's
fee application for services rendered from August 1995 to October
1996. Pfizer made a $6.25 million payment on October 3, 1996, and
class and special counsel requested fees of $722,987.75. The
trustees recommended an award of $625,000 and full reimbursement of
$69,255.48 in expenses. On March 17, 1997, Judge Spiegel issued an
order regarding counsel's annual fee request in which he adopted
the trustees' recommendations and awarded the fees and expenses.
Judge Spiegel went on, however, to award class and special counsel
$625,000 for each of the remaining years of $6.25 million payouts.
Judge Spiegel wrote:

The Court finds that awarding Class and Special
Counsel each year 10% of the annual payment, regardless
of the lodestar, fairly and efficiently resolves the
attorneys' fees issue for the present and future fee
applications. Even though Counsel's current lodestar
exceeds the 10% cap for this year, undoubtedly there will
be future applications for which the lodestar will be
less than the 10%; in other words, the fee award will
balance out over the remaining years defendants
contribute to the Patient Benefit Fund. Furthermore,
this approach eliminates the annual controversial dispute
over attorneys' fees.

Bowling v. Pfizer, Inc., No. C-1-91-256, order at 5 (S.D. Ohio
March 17, 1997). Crane appealed the decision.


Typically, a circuit court reviews a district court's award or
denial of attorneys' fees for abuse of discretion, Cramblit v.
Fikse, 33 F.3d 633, 634 (6th Cir. 1994), but this case differs
because it is governed by the law of the case. Judge Spiegel was
not awarding attorneys' fees in a vacuum but rather

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Bowling, et al. v. Pfizer, Inc., et al.
No. 97-3369

according to the blueprint established by Judge Nangle in Bowling
v. Pfizer, Inc., 922 F. Supp. 1261 (S.D. Ohio 1996), and affirmed
by the Sixth Circuit. Bowling v. Pfizer, Inc., 102 F.3d 777 (6th
Cir. 1996). "Under the law of the case doctrine, a court is
ordinarily precluded from reexamining an issue previously decided
by the same court, or a higher court in the same case."
Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 (6th Cir. 1996)
(internal quotation marks omitted). Judge Spiegel therefore was
obligated to follow Judge Nangle's previous opinion. We recognize
that the law of the case doctrine is discretionary when applied to
a coordinate court or the same court's own decisions, United States
v. Todd, 920 F.2d 399, 403 (6th Cir. 1990), but Judge Spiegel
cannot depart from the decision of a district court that this Court
has affirmed. Brunet v. City of Columbus, 58 F.3d 251, 254-55 (6th
Cir. 1995).

We realize that the previous district court decisions did not
fully limn the criteria for the payment of future fees. "The
doctrine of law of the case comes into play only with respect to
issues previously determined. . . . While a mandate is controlling
as to matters within its compass, on the remand a lower court is
free as to other issues." Quern v. Jordan, 440 U.S. 332, 347 n. 18
(1979) (internal quotation marks omitted). Judge Spiegel therefore
is bound by the law of the case on some issues, but where the
previous cases were silent we will measure his fee decision by an
abuse of discretion standard.

We therefore must determine what the law of the case is.
Briefly put, Judge Nangle provided for annual applications, to be
vetted by the trustees, for up to $625,000 per year in fees, with
additional monies for expenses. Bowling, 922 F. Supp. at 1284.
The ten percent cap could be exceeded "in the highly unlikely event
that Counsel's legal services for a particular period justify such
action . . . ." Bowling, 927 F. Supp. at 1044. The overarching
principle was that payments would be made for benefits "actually
conferred upon the Class." Bowling, 922 F. Supp. at 1284. Judge
Nangle did not choose between a lodestar or percentage of the fund
approach, and he did not mention a multiplier in the case of a
lodestar. Judge

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Bowling, et al. v. Pfizer, Inc., et al.
No. 97-3369

Nangle also provided for counsel to receive expenses, but gave no
criteria for the awarding of expenses. Id. Regarding future fees,
Judge Nangle did not provide for a set annual fee. Id. The Sixth
Circuit did not further elucidate Judge Nangle's fee framework but
simply affirmed his decision and described his order as "well
reasoned." Bowling, 102 F.3d at 780. As the following analysis
will show, Judge Spiegel did not follow the law of the case either
in regard to the initial annual fee application or in reference to
future years.


Crane argues that Judge Spiegel miscalculated the initial
annual fee installment. Class and special counsel requested
$722,987.75, and Judge Spiegel awarded $625,000. Judge Spiegel
based his decision on the trustees' recommendation. The trustees,
in turn, calculated the fees on a percentage of the fund basis,
noting: "The Trustees believe that the Court's intention was that
counsel fees paid upon receipt to the annual payments to the
Patient Benefit Fund would also be on the percentage basis (that
is, 10% of the annual payment)." The trustees, however,
misapprehended Judge Nangle's edict.

Judge Nangle's earlier fee decision anticipated a more
individualized inspection of future fees. The initial $10.25
million award was calculated on a percentage of the fund basis, but
the yearly payments, though not specifically termed "lodestar,"
follow a lodestar approach. According to Judge Nangle, "the future
portion of Counsel's award will fairly compensate Counsel for the
future work that they will do and the benefits that they will
confer upon the Class at or near the time that this work is
actually done and these benefits are actually conferred upon the
class." Bowling, 922 F. Supp. at 1284. In discussing work
"actually done" and benefits "actually conferred," Judge Nangle is
speaking in lodestar terms.

We therefore reverse Judge Spiegel's decision regarding the
1995-96 payment and remand for reconsideration in light of hours
billed for the benefit of the class. A flat rate award is not
sufficient in light of Judge Nangle's guidelines. Although

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Judge Spiegel need not discuss the billing records in excruciating
detail, he does need to establish some reasonable relationship
between hours worked for the class and fees paid by the class. "It
remains important . . . for the district court to provide a concise
but clear explanation of its reasons for the fee award." Hensley
v. Eckerhart, 461 U.S. 424, 437 (1983).

In reference to the first year of billing, Crane agrees with
class and special counsel on $540,000 in fees. Crane disputes
between $150,000 and $175,000 in billings. Judge Spiegel can start
from that benchmark and limit his inspection to the disputed fees.
In his original fee decision, Bowling, 922 F. Supp. at 1280, Judge
Nangle assessed the fee request in light of the factors set out in
Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516-17
(6th Cir. 1993). Those factors are largely inapposite here. Crane
generally does not dispute the hourly billing rates of the various
attorneys but rather contends that counsel's services were not
provided for the benefit of the class. Therefore, Judge Spiegel
must look at the disputed billings to determine whether they are
inadequately descriptive, whether the work is duplicative or
clerical, or whether the records are susceptible to any of the
other shortcomings Crane has enumerated. Class and special counsel
also cannot be recompensed for work done to enhance their fees. It
goes without saying that Judge Spiegel should apply the same
scrutiny to Public Citizen's billings. We suggest that the
district court enlist the services of an auditor if necessary to
assist it with the inspection of the records.

On remand, the court should not use a multiplier in its
lodestar calculations. A multiplier "account[s] for additional
factors such as the contingent nature of the case and the quality
of an attorney's work." Bowling, 922 F. Supp. at 1278. Class and
special counsel are adequately compensated for the quality of their
work in this case by their billing rates, which range as high as
$325 per hour. Regarding contingency, this case has settled so
there is no risk. See Bowling, 922 F. Supp. at 1282. Class and
special counsel do not merit the benefit of a multiplier.

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Fees aside, it does not appear that Judge Spiegel or the
trustees made any particularized inspection of class and special
counsel's expense request. A simple rubber stamp is insufficient.
For instance, the Chesley firm billed $3,943.50 for in-house
photocopying expenses, but there is no indication in the record of
what the Chesley firm charged per photocopy. We will not delve
into the minutiae of setting reasonable photocopying rates, but we
would suggest that Judge Spiegel or the trustees do so. Allowing
a several thousand dollar payment for photocopying expenses without
looking into the cost per photocopy is exemplary of an
impermissible laxity. On remand, the district court should cast a
strict eye toward counsel's expense submissions.


Crane argues that Judge Spiegel erred in awarding class and
special counsel $625,000 a year in fees until 2005. Judge Spiegel
was charged with carrying out the mandate of Judge Nangle's earlier
decision on fees. In setting annual payments at a standard rate,
Judge Spiegel exceeded his authority. In his earlier decision,
Judge Nangle had noted that class and special counsel could apply
for "up to 10%" of the $6.25 million payments, thereby implying
that he foresaw annual awards of lesser sums. Id. at 1284. He
also later noted the possibility of "rais[ing] the 10% cap."
Bowling, 927 F. Supp. at 1044. Judge Nangle did not, however,
provide for a set annual fee. He could have done so but noted that
"it is simply not appropriate for this Court to pay Counsel for
services which they may or may not render in the future." Id. at
1043. Judge Spiegel has failed to follow the law of the case in
attempting to set future fees. Therefore, regardless of how much
time or money it might save simply to set a flat rate for future
years, Judge Spiegel does not have that freedom.

Judge Spiegel's $625,000 annual award is so indefensible that
even class and special counsel, those who would benefit from Judge
Spiegel's largesse, do not argue in favor of that aspect of his
decision. They do not claim that Judge Spiegel awarded $625,000
a year in future fees or even that he had the authority to do so.
Instead, the class and special counsel

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argue that Judge Spiegel did not make a final decision on future
fees and therefore did not contradict Judge Nangle's prior opinion.
Class and special counsel point to Judge Spiegel's statement that
the awards are "subject to further Order of the Court and assuming
Counsel perform the duties required of them." Order at 6. Any fee
payment in this case, however, is "subject to further Order"
because the trustees can only make recommendations. In addition,
Judge Spiegel has awarded counsel $625,000 a year if they merely
"perform the duties required of them." By the year 2005 the
"duties required" of class and special counsel could be incredibly
minimal, yet if they perform those duties they will be entitled to
$625,000 for that year. Judge Spiegel's decision regarding future
fees is, for all intents and purposes, final because subsequent
conditions are minimal. Judge Spiegel has gone against the law of
the case and his decision on this issue is reversed.


This dispute is not about whether class and special counsel
have served the class well. Crane merely contends that counsel
have overcharged for their services or charged for services of no
benefit to the class. The district court should pay particularly
close attention to counsel's fee requests, because this money comes
from the beneficiaries, not from the defendants. Indeed, Pfizer
has no interest in this case and neither filed a brief nor appeared
before this Court. The district court and trustees misunderstood
their mandate and inadequately scrutinized counsel's claim. The
district court's decisions awarding counsel fees for the initial
annual payment and setting a standard rate for future payments are
REVERSED and REMANDED. This case is remanded for reconsideration
of fees under a lodestar method that ties fees paid to hours worked
for the benefit of the class. On remand, the district court should
reconsider the fee application in light of the guidelines set forth
above, and the court should do so in future years as well.