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December 18, 2001


The opinion of the court was delivered by: Christine Noland, Magistrate Judge.


A hearing was held May 21, 2001 on the pending motion to fix the costs incurred by the Georgia Gulf Litigation Group ("GGLG"). The motion was filed by previous clients of the Georgia Gulf Litigation Group (the "objectors"), as they challenge the right of the GGLG to subtract 2.5% of their settlements for costs incurred by the GGLG for the common benefit of all plaintiffs and they challenge the amount of costs claimed. The GGLG is comprised of five members of the Plaintiff's Steering Committee ("PSC") appointed by the 18th Judicial District Court of the Parish of Iberville, Louisiana. These consolidated Georgia Gulf cases involve the release of a large quantity of mustard gas at the Georgia Gulf Corporation plant (Georgia Gulf) in Plaquemine, Louisiana on September 25, 1996. They were removed to this Court on December 23, 1998.

While the cases were still in the state court, the district judge appointed the PSC by orders of the Court dated March 25, 1997 (PSC Exh. 21), and November 3, 1997 (PSC Exh. 22). The earlier order states as follows:

An award for the costs associated with work required of the plaintiffs' committee on behalf of all plaintiffs by virtue of this Order will be borne by all plaintiffs who benefit as a result of this effort. It is therefore required that all members of the committee shall keep a daily record of their time and expenses incurred in connection with their activities as committee members. The committee may not bill for time spent in pursuit of its own claims. Since one of the criteria used by the Court in establishing the Committee is the number of claimants the attorneys represent, and since those claimants will benefit from the result of work by their attorneys, the Court will assess a pro-rata type of expense to the additional plaintiffs.

PSC Exh. 21.

In the November 3, 1997 order, the Court appointed Mr. Robert H. Schmolke as Plaintiffs' Liaison Counsel and Mr. Lewis O. Unglesby as Plaintiff's Lead Counsel, giving each specific duties, not pertinent here. Messrs. Donald T. Carmouche, Joseph J. McKernan, Michael V. Clegg, Patrick C. Morrow and Frank Tomeny, III were additionally appointed to the Plaintiffs' Steering Committee ("PSC"). In Section C. 2. of the order, the Court stated:
2. All plaintiffs' counsel and/or unrepresented plaintiffs shall make arrangements with Plaintiffs' Liaison Counsel to escrow funds for immediate reimbursement to Plaintiffs' Liaison Counsel of the costs incurred to serve documents as ordered herein above. Plaintiffs' Liaison Counsel shall maintain a separate and detailed expense log for each counsel/entity to whom notice is provided by Plaintiffs' Liaison Counsel reflecting all expenses incurred. The log shall reflect total copying costs, number of copies, copy charge per page, total postage costs, the number of items mailed, actual time expended by employees performing duties assigned herein above, and standard hourly rate charged for each employee's services. Each party has the right to object to any charges by filing an objection with Liaison Counsel within fifteen (15) days of request for payment. Thereafter, if no agreement is reached, either party may file a motion with the Court to resolve the issue.

PSC Exh. 22.

On April 14, 1998, the Plaintiffs' Steering Committee filed a Motion to Establish an Escrow Account to Compensate Plaintiffs' Steering Committee for Costs, Expenses and Attorneys' Fees. However, by July 16, 1998, the PSC and some of the non-PSC counsel had signed a letter agreeing to escrow 2.5% of any settlement "in consideration for the PSC's work . . ., and that no further amounts for costs/fees will be sought by the PSC." This letter begins by referencing the PSC's "claim for attorney's fees/costs in the above referenced matter, . . . ." When counsel reached this agreement, the state court acquiesced in the agreement and did not enter a ruling on the motion. Since the state court accepted this agreement, no other procedures were instituted for costs reimbursement in accordance with the Court's prior rulings, thus relieving the attorneys from the responsibility of keeping costs records. Further, the attorneys believed that they would be getting all of the 2.5% in payment of their costs and additional attorney's fees for their work on the PSC.

By December of 1998, several settlements had been reached and the PSC decided to file a Motion for Cost Reimbursement. The PSC stated, in this motion, that five cases had settled and they wanted all non-PSC plaintiffs' attorneys and participating defense counsel to provide them with information on the settlements and escrow the 2.5% money. At the hearing on the motion,*fn1 the Court stated, in pertinent part: ". . . Court is going to order that any non-steering committee plaintiffs produce a copy of the draft together with any release, receipt and release. Those two things must be produced or else possibly be held in contempt of court for violating this order." Id., p. 22. During that hearing, the Court also exempted Mr. Daniel Becnel's cases and the cases of Ms. Donna Grodner from this order, but he never specifically ordered anyone to escrow the 2.5% out of their settlements; the judge just ordered everyone to give the PSC information on their settlements so the PSC would be sure to get their 2.5% in accordance with the agreement. Id., p. 27. This Court understands that a separate order was going to be submitted to the district judge for his approval, setting forth his ruling with more details, however, the case was removed the next day, December 23, 1998, and the separate order was never entered. Most importantly, the court never took control of any escrowed funds.

After removal, settlements were being executed and motions to dismiss were being filed, but, to the undersigned's knowledge, no mention was made about the 2.5% agreement, the 2.5% escrowed money or Judge Best's ruling concerning the recovery of "costs." Since this Court had no knowledge of the escrowed funds, the Court proceeded as though no escrowed funds existed.

On February 9, 2000, a lawsuit was filed in the 19th Judicial District Court on behalf of several plaintiffs from this litigation against the Georgia Gulf Litigation Group attorneys.*fn2 This suit alleged malpractice and various breaches of the duties owed by the PSC to its clients, including questioning the propriety of the 2.5% withholding. Shortly thereafter, the GGLG filed a Petition for Declaratory Judgment in the 18th Judicial District Court, Parish of Iberville, State of Louisiana, asking the court to assess costs in the matter so that any appropriate refunds of the 2.5% money could be made. A hearing was set for April 12, 2000.

On April 10, 2000, Mr. Wendell G. Lindsay, Jr., Esq. and Mr. L. Stephen Rastanis, Esq. filed the Joint Motion to Fix Method of Determining Costs Sought to be Charged by Former Attorneys for Settling Plaintiffs, and For Stay of State Court Suit Brought by Former Attorneys on Such Issue on behalf of certain plaintiffs who had previously been represented by the GGLG. Hearing on the motion to stay was held before the Honorable Judge John V. Parker on April 11, 2000. Judge Parker issued an order restraining named plaintiffs, the named defendants and their lawyers and all others acting with or for them from prosecuting the action in the 18th Judicial District Court, Parish of Iberville, La., until further order of the court, finding that this Court was the proper Court to handle such matters, and referred the motion to fix costs to the undersigned.

By Amended Ruling and Order dated June 7, 2001*fn3, this Court determined that the state court judge's authority for appointing the PSC and requiring all plaintiffs to share in the expenses of the PSC was through the "common fund" doctrine.*fn4 It also determined that the Court had a responsibility to the plaintiffs and the public to re-take control of the remaining money in the 2.5% fund and approve costs in this matter. See, Purdy v. Security Savings & Loan Association, et al., 727 F. Supp. 1266, 1268 (E.D.Wis. 1989). In Purdy, the Court reasoned:

When a common fund is available, attorneys for the successful parties may petition for a portion of the fund as compensation for their efforts. Once an attorney files such a petition, his role changes from one of fiduciary for his clients to that of a claimant against the fund created for the clients' benefit. Defendants, having made their contribution to the settlement, are uninterested in the distribution, so (as in this case) they typically do not offer any opposition to the fee petition. It is, therefore, incumbent upon the trial court to become the fiduciary for the fund's beneficiaries and to act with `moderation and a jealous regard to the rights of those who are interested in the fund' in determining what is a reasonable fee to be paid to class counsel for their efforts in settling the litigation and creating the fund. (Cites omitted.)

Id., at 1268. The same reasoning applies to the application for costs in the present case, although some of the plaintiffs are now represented by other counsel who will also represent the interests of the plaintiffs.

In furthering this duty, when a court makes its initial determination that a case involves a common fund and that it will control the fund established, the court can explain the reasons for the ruling and the procedures to be followed so the litigants will have confidence in the procedure and the necessity for doing so. The court can explain that the common fund doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense. Boeing Company v. Van Gemert, et al., 444 U.S. 472, 478 (1980), see, e.g., Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970). Further, as explained by the First Circuit Court of Appeals in In re Nineteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1992):

A court supervising mass disaster litigation may intervene to prevent or minimize an incipient free-rider problem and, to that end, may employ measures reasonably calculated to avoid "unjust enrichment of persons who benefit from a lawsuit without shouldering its costs." Such courts will most often address the problem by specially compensating those who work for the collective good, chiefly through invocation of the so-called common fund doctrine. In its paradigmatic formulation, the common fund doctrine permits the trustee of a fund, or a person preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including counsel fees, from the fund itself, or alternatively, from the other beneficiaries. . . . Although common fund cases are sui generis, they typically evince certain characteristics. These include ease in identifying the persons, or classes of persons, benefitted by the recovery; ease in tracking the benefit flow; the ability to trace benefits with enough accuracy that, in the end, the flow chart inspires confidence; and the ability to shift litigation costs with enough precision and reliability that cost and benefit are fairly proportionate to one another. (Cites omitted.)

Id., at 606. As this case presently stands, the plaintiffs are suspicious of their attorneys, having filed suit against them in 2000. The plaintiffs complain that they were never told what the 2.5% was for and were never given an accounting of the money. The attorneys, relying on the state court's acceptance of their letter agreement, stopped keeping records of the costs incurred and have had to re-invent the records as best as they could. It is not a matter of the attorneys disobeying the orders of the court; it is a matter of the attorneys relying on the court's acquiesce of the letter agreement. Due to this reliance, the attorneys thought that all of the 2.5% money was theirs*fn5 and paid other expenses out of this fund, not related to the Georgia Gulf litigation. When the complaining plaintiffs obtained a copy of the expenditures through discovery, and saw these other expenses, they were furious and accused the attorneys of being extravagant and wasting their money. Since the state court did not control the funds and approve the costs, the plaintiffs did not have confidence in the procedure and did not know why they were being charged 2.5% for costs.

Even though the state court accepted the letter agreement, this Court is not bound by the agreement between counsel*fn6 and is not bound by the state court's order. Although the state court's order becomes federalized when the action is removed to federal court, it remains subject to reconsideration just as it had been prior to removal. 28 U.S.C. § 1450; Resolution Trust Corporation v. NorthPark Joint Venture, et al., 958 F.2d 1313, 1315 (5th Cir. 1992), citing Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1303 (5th Cir. 1988). If the costs had been approved as the case proceeded, the attorneys would have had to maintain their records and would have been able to explain the expenditures at the time they were incurred and reimbursed. This case has been proceeding since 1996, incurring expenses every year since then. One thing lost during this time was the memory of the attorneys incurring these expenses. Since the attorneys have relied on the agreement and were no longer required to keep contemporaneous records, this Court determined to receive the reconstructed evidence of the costs incurred over the past four to five years and, in the event the proven costs were relatively close to the 2.5% amount, or higher, the Court would approve the 2.5% as being reasonable under the circumstances without approving a certain dollar amount. In the event the proven costs were substantially less than the 2.5% amount, then the Court would have to approve a certain dollar amount. The GGLG attorneys determined that they would wait for a ruling on the costs allowed before they made a decision of whether to seek additional attorneys' fees for the work performed on the PSC. Although this procedure is not the normal procedure, it is one that is required by necessity. See, In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d 1006, 1012 (5th Cir. 1977).

Previously, the Court determined to categorize costs into litigation costs, distribution costs and administrative costs. Litigation costs include the typical costs of maintaining a lawsuit, such as expert witness's fees, filing costs and staff attorney costs which were for the benefit of the group. Administrative costs are those that are unique to a case where a plaintiffs' steering committee is appointed, such as the costs of notices, copying costs and any staff costs associated with the administration of the cases. The distribution costs are those associated with preserving the fund and making the distributions to the plaintiffs.*fn7 As explained in the Court's Amended Ruling and Order of June 7, 2001, these examples were not to be considered as exhaustive; they are merely demonstrative and evidence would be received for other costs not listed.


Starting with the least controversial expenses, the Court finds that all of the liability experts' expenses were for the common benefit of all plaintiffs. In accordance with the testimony of Mr. Lewis Unglesby, Mr. Robert Schmolke and Mr. Donald T. Carmouche, no one knew what chemical caused the injuries to the workers at the time of the release. At first Georgia Gulf was blaming the injuries on "bad gas" obtained from other defendants. (Tr. P. 462.) The PSC had to hire experts, such as the Gas Processor's Association, to disprove this theory. In order to determine what chemical was causing these injuries, a lot of the plaintiffs would bring the attorneys samples of the dirt and water at the plant, their clothes, or anything else they could find that was in the area at the time so it could be analyzed by the experts. (Tr. P. 723.) In connection with the expert's expenses, the PSC incurred expenses from Chemron, Inc. for storage costs for these and other samples which are also accepted as common benefit expenses. (B. 273-282.)

It was not until around October 31 that Harmony told its employees that they had been exposed to nitrogen and sulfur mustard agents. (Tr. P. 722.) Other chemicals were involved, but they are more well known. Even with the identification of the mustard agent, the PSC still had to have its experts figure out how a mustard agent could be produced from the processes utilized at Georgia Gulf. Mr. Unglesby testified that the process at Georgia Gulf was not supposed to make a mustard agent, that one cannot go buy a mustard agent, that a mustard agent could not legally be produced and that it did not naturally occur in any kind of chemical procedure. (Tr. P. 463.) Mr. Schmolke testified that there were only a few experts in the field of mustard gases, one of which was the Department of Defense and its officials refused to help. (Tr. P. 710.) Harmony later stated that it came from its VCM unit (vinyl chloride monomer unit). The PSC didn't know what a VCM unit was, so they had to hire engineers to explain it to them. (Tr. P. 722.) The engineers had no idea how a VCM unit could ever synthesize mustard gas because they didn't know what mustard gas was. (Tr. Pp. 722-723.) Each discipline had to help each other out, literature had to be obtained and studied and each expert had to educate himself or herself about mustard agents. Further, other experts had to be hired as Georgia Gulf came up with different theories for the injuries. For example, Failure Analysis Associates had to be hired to disprove that spider cracking in some tubing and piping allowed some other chemical to leak and cause the injuries. (Tr. Pp.724-725.) It was Dr. W. E. Billups and Mr. Phil Koewwn who finally determined what happened, so it was the PSC who told Georgia Gulf how the mustard agent was produced.*fn8 This most certainly benefitted all plaintiffs.

The experts not only worked on the cause of the accident, some of them were instrumental in coaching the attorneys for depositions of defendants' experts and witnesses. Dr. Clayton Callahan and Dr. Knopf, engineers, helped Mr. Schmolke and Adele Owen to devise the first set of questions for Mr. Schmolke to take the first deposition of Georgia Gulf's VCM manager, or its plant engineer. (Tr. P. 723.)

Other non-medical experts included Mr. Bret Talbot and Mr. Henry Guidry. These two experts were consulted concerning the financial condition of Georgia Gulf. Mr. Talbot was the CFO of Shaw Industries, an international company located here in Baton Rouge, La. and Mr. Guidry was from Henry Guidry, Inc. They were able to tell the PSC that Georgia Gulf was having problems getting its cash flow loan refinanced due to the pending litigation. They were informed that Georgia Gulf had told its creditors and Wall Street that it would have this litigation taken care of by the end of 1999 and that it had enough money to cover it. If Georgia Gulf did not get the case settled by the end of 1999, it was not going to be able to refinance anything and it was going to be in trouble financially. Mr. Talbot helped during the negotiations by participating in telephone conferences and countering some of the arguments by Georgia Gulf and continued monitoring the financial condition of Georgia Gulf through September, 1999, as most of the settlements were not finalized until October or November of 1999. (Tr. Pp. 731-733, 741.) This information helped all plaintiffs in getting this matter resolved.

The Court will recommend that the following expenses for liability and other experts and related charges be found to be reasonable and for the benefit of the group:

1. Bret Talbot, financial consultant re.:Georgia Gulf (B.259-272) $2,562.50


Other charges for experts were paid for directly by the attorneys and the attorneys were reimbursed. These expenses are included with other charges and will be dealt with in the miscellaneous section of this report and recommendation.


The expenses for the medical experts consulted are certainly no problem. Their work benefitted all plaintiffs in establishing causation for all plaintiffs. However, the GGLG seeks to charge some of the individual medical expenses incurred by the plaintiffs to the common fund. These expenses are usually charged directly to the individual plaintiffs incurring the expenses. In a normal exposure case, where the chemical is a known agent, the plaintiffs go to their family doctors and are treated individually. The doctors have no contact with the attorneys, except to request medical reports and to take their depositions, so there is no benefit to anyone but the individual plaintiff. In the present case, however, this is not what occurred.

As indicated above, little was known about mustard agents at the time of the release, and few people knew anything about the medical consequences of being exposed to it. One of the only experts found, outside the Department of Defense, was Dr. Annet Aasted from Denmark. She was the only person who had studied people for a long period of time who had been exposed to mustard agents. (Tr. P. 604.) She was invaluable in identifying the types of injuries that can be inflicted due to a mustard agent. The experts and the treating physicians had to work together to understand what was happening to the plaintiffs and what caused the symptoms. The PSC initially hired Dr. Dave Davis, a retired surgeon, to coordinate and educate the various doctors they would need, but eventually Dr. Nesetta took over this job. (Tr. Pp. 607-608.)

Mr. Unglesby explained that most treating physicians are not necessarily interested in undertaking research to find the cause of an injury, they are more interested in just treating it. In this case, they had to use their experts to educate the treating physicians as to the effects of the mustard agents and other chemicals the plaintiffs were exposed to. As explained by Mr. Unglesby:

(Tr. P. 465.)

Further, they had to have a special software program developed in order to keep track of the various symptoms of the plaintiffs. (Tr. P. 730.) Mr. Unglesby theorized that a defense expert will attempt to associate these various symptoms with the age of the person, his/her weight or the fact that that person is a smoker. In order to rebuff these allegations, it was necessary to be able to prove that there were, for example, "a hundred and twenty-five people like Client Jones and they're all between 30 and 40 years old and all these things that have happened to them don't normally happen to people who have genetics, smoke cigarettes, are overweight, etc., etc., until they're 60, . . . ." (Tr. P. 467, 730.) They had to have this "crass epidemiological" (Tr. P.468) information in order to help prove causation. It also helped the other non-PSC attorneys with their clients. If one of them had a certain symptom that the physician could not understand, they were able to pull up all the other plaintiffs with that same symptom and give that information to the doctor. In that way, the doctors could consult one another and better understand what they were dealing with. It also helped in settlement as they were able to tell the defendants the number of individuals that suffered from the same symptoms and that there was no other explanation other than the exposure. (Tr. Pp. 358-360, 364, 416, 468.)

So, in this case, the information gathered from all of the treating physicians created the basis for proving causation and for helping other plaintiffs receive the proper treatment. It was the knowledge collected by the doctors, bit by bit, in treating the various plaintiffs that was beneficial to all the plaintiffs. The PSC controlled which doctors the plaintiffs were seeing so they could help the doctors understand the problems better, keep track of the various symptoms and build this raw data into valuable information to present to the defendants. (Tr. P. 607, 614.) It was as though the doctors had a specialized control group from which this "crass epidemiological" information could be pulled. It was vital to the case that this information be gathered from all of the doctors. Without the collected data, none would have benefitted.

The individual expenses the GGLG seek to charge to the common funds are the expenses of Dr. John Clifford and Dr. Oscar Rogers. Mr. Michael B. Clegg, Esq. testified that Dr. Clifford is a neurosurgeon who worked closely with Dr. Oscar Rogers and Dr. Zuckerman, neurologists, in treating the plaintiffs with headaches, tremors, dry eye syndrome and all kinds of neurological problems that no other discipline could put its finger on. Dr. Clifford was given information on mustard gases to study to help tie these symptoms to the exposure and worked with the other doctors in trying to make this connection. (Tr. Pp. 606, 613.) Since these plaintiffs were sent to these specialists in order to determine causation, the Court will approve these expenses as common benefit expenses as a determination of causation helps all of the plaintiffs.

The GGLG proved that these expenses were incurred and that they benefitted all plaintiffs — PSC clients as well as non-PSC clients. The opposition proved that these expenses were for the benefit of individual plaintiffs, but they did not disprove that these expenses benefitted all of the plaintiffs. Under these unusual circumstances, the Court will recommend that all of the medical expenses of these specialists submitted as common benefit expenses be approved.

The medical and related expenses recommended for approval by the Court as being for the common benefit are as follows:

• Diversified Consulting, medical consultant (B.320-321) $20,000.00 • Dr. Annet Aasted, medical consultant & wire transfers (B.322-335, PSC Exh. 34, 35) 65,499.66 • Dr. Annet Aasted, depo. (B. 684-691) 4,127.04 • Legal World Inter., interpreter for Dr. Aasted dep.(B.1300-1305) 441.00 • Dr. Carl Ludvigsen, toxicologist, medical consultant (B.336-406) 63,895.05 • Dr. Dave Davis, Div. Cons., medical consultant (B.446-447) 15,000.00 • Dr. Legator, Univ. of Texas Med. (B.487) 50,000.00 • Dr. Kimberly A. Meng, DDS, Ph.D., conf. in Hammond, La. (B.1287-1289) 500.00 • Dr. Jack Waxman, rheumatologist, medical research (B.452-482) 3,600.00 • Debra L. Morris, Dr. Legator's assist.(B.305-308) 1,000.00 • Dr. Leroy Joyner, pulmonologist, symptom survey (B.488-489) 125.00 • University of Texas, Medical Branch, symptom survey(B.3817-3821) 1,465.36 • Dr. Gouvier, consultation, expert-neuro psy. (B.449-451) 400.00 • Dr. Russell Saloom, depo. (B. 545-547) 400.00 • Dr. Stephanie Cave, medical consultant (B.548-550) 1,000.00 • Dr. William Nassetta, medical causation coordinator (B.559-583) 108,792.00 • Dr. Yuruk Iyriboz, depo. (B. 584-585) 2,000.00 • Family Therapy Clinic, Drs. Gouvier & Pinkston, Psy. Experts (B.796-798) 4,000.00 • Information Research, medical research (B.1190-1192) 178.03 • La. State Medical Society, Med. Directory of La. doctors(B.1355-1356) 57.00 • Pulmonary Disease Clinic, consultant (B. 2065-2067) 54.00 • Reimburse Unglesby for Dr. Cave (B.3822-3823) 245.00 • Reimburse Unglesby for Dr. Cave (B.1426) 249.00 • Network Support Services, client database (B.1899-1901) 10,584.00 • Baton Rouge Psychological Assoc., (B.100-254) 146,885.00 • Work. Comp. Refund for B.R. Psych. Assoc. (N/A) (111,935.00) • Dr. Cary Rostow, Psy. (B.407-445) 15,465.00 • Work. Comp. Refund for Drs. Robert Davis & Rostow (N/A) (4,400.00) • Dr. Louis Cenac, psychiatrist (B.490-496) 1,481.43 • Dr. Robert D. Davis, psychologist, B.R. Psych. Assocs. (B.502-544) 8,949.00 • Work. Comp. Refund, R D Associates, psychologist (3,400.00) • Reimburse Schmolke for B.R. Psych. Assoc. (B.2824-2843) 75.50 • Dr. John Clifford, neurosurgeon (B.483-486) 11,280.00 • Dr. Oscar Rogers, neurologist (B.497-501) 300.00


Again, other charges were paid for directly by the attorneys and will be listed as a reimbursement to the attorneys on the Common Expense List, (Exh. PSC 1). These expenses are included with other charges and will be addressed in the miscellaneous section.

In order to verify the above charges, most of the underlying documents (Exh. PSC 2) were reviewed and compared for duplicate billings and any references to the Georgia Gulf litigation or other identifying notations on the billings were observed. A more detailed analysis was performed on some of the other charges. For example, the charges for Dr. Cave were reviewed and compared and the Court determined that the charge for $1,000.00 (Exh. 1, p. 5, ck. 1551) was incurred March 24, 1998, the $245 charge (Exh. 1, p. 19, ck. 104) was paid February 4, 1997 and the $249 charge (Exh. 1, p. 12, ck. 1121) was paid January 9, 1997. None of the charges appeared to duplicative and were approved. The charges to Diversified Consulting, owned by Dr. Davis, and the charges made directly by Dr. Dave Davis were compared for duplication and none were found.


The travel and related expenses were then reviewed. Some of the deposition times and travel times for taking the experts' depositions were compared. Of course there were more travel charges than out-of-town depositions as the PSC had to travel and meet with their experts and other consultants. Further, the number of passengers in the chartered flights were compared with the number of people attending the depositions, and limo and hotel charges were spot checked. For example, Exh. PSC 12 shows that the deposition of E. Schmitt, II was taken in Atlanta, Ga. on June 10, 1998 through June 11, 1998. It also shows that ten (10) plaintiffs' attorneys attended. PSC Exh. 1 and 2 show (B.1349-1351) that six (6) passengers were on a chartered flight from Baton Rouge to Atlanta on June 9 and returned June 11, 1998. Bates numbers 1884-1887 show the hotel charge for Michael Clegg from June 8, 1998 through June 11, 1998. The hotel charge for Robert Schmolke, $975.41 (B.2355), is included with his reimbursement for $10,237.49 in check number 1941 on September 23, 1998. Limousine charges on June 9 are reflected at Bates 1354 in the amount of $719.40.

In most cases, the expenses for limousines were first reduced by any stand-by time and then only one-third of the limousine charges were charged to the group. (Tr. Pp.162-163.) Limousines and chartered planes were often used by the attorneys due to the number of people involved and the large number of documents they had to take with them. (Tr. P. 162, 235.) The chartered flights were also for the convenience of being able to fly at a time when a commercial flight was not available. Many of the chartered-flight bills show that they were able to fly to their destination and return in the same day, thus saving hotel and food bills. On September 2, 1997 (B.1324), Mr. Schmolke chartered a flight to Houston, Texas and reduced the $1958.50 bill to $1416.00. He returned on the same day, however there was a 13 hour stand-by charge for the pilot amounting to $260.00. The $260.00 stand-by charge was cheaper than a hotel room during that time. Bates 2310 shows that the charge for a one-night stay at that time was about $450.00*fn9. If the Court assumes that the stand-by time was for the time spent on the ground in Houston, this would mean that Mr. Schmolke had a long day and a stay over would have been totally justified. Further, several bills were reduced when they really should not have been.

Bates number 1553 shows that a round-trip ticket on a commercial plane to Houston was around $591.00.*fn10 On December 16, 1997 a plane was chartered for five (5) people to travel to Houston. The total bill was $2429.92, but this was reduced to $1416.00. If a commercial ticket costs $591 per person, the total bill for all five (5) people to travel to Houston on a commercial plane would have been $2955.00. Thus, the GGLG should have charged more for this flight instead of reducing it. The same was true for the flights on November 11(B.1334-1336) and November 25, 1997 (B.1339). Neither of these flights were reduced, however, the bill could have been increased from $2389.16 to $4137.00 and from $2036.95 to $2955.00, respectively.

The Court finds that using chartered flights and limousines under these circumstances was reasonable and the expenses, thus reduced, should be approved.

Of course, certain inconsistencies were also found, but none were of major consequence. For example, in cross examination (Tr. Pp. 504-506) it was pointed out that there is a charge for $143.00 (Exh. 1, p. 19, ck. 1822) for a one-way ticket to Atlanta, Ga. on June 10, 1998 (B.3856) and another charge for $133.00 (Exh. 1, p. 19, ck. 3058) was made for a one-way ticket to Atlanta, Ga. on the same day (B.4084). The charge at 3856 shows that the original cost of the ticket was $133.00, but with an added service fee, the total bill was $143.00. Apparently this is a duplicate charge and should be taken out. The $133.00 charge will be eliminated. Another example is found on Bates 3350. Mr. Lindsay pointed out on cross examination of Mr. Schmolke that there was a $20.00 charge to this case that should have been charged to the state case. (Tr. Pp. 824-825.) There also appears to be duplicate charges at Bates 810, 811 and 2020 in the amounts of $341.24, $376.11 and $539.42. These will be disallowed as well. Other charges were found that were not correctly charged to the common benefit, especially during the examination of Mr. Clegg (Tr. Pp.869-885), but these will not be listed as they would amount to probably less than $4,000.00 and would not alter the results.

The Court has been unable to locate the charges for food items that are necessarily incurred when traveling out of town. A few of the hotel bills may contain charges for food, but the court did not check all of them. Apparently, these charges were not submitted for reimbursement, but reasonably could have been. It was the testimony of Mr. Stephens that no meal charges were made to the group. (Tr. P. 163.)

These inconsistences and deletions are not unusual in a case of this size, and, of course, are more prevalent in this case since the expenses have been reconstructed. Mr. Shelby Easterly, III testified at the hearing of this matter and indicated as much. He was accepted by the Court as an expert in the field of litigation, administrative and distribution costs in mass tort actions. (Tr. Pp. 27 & 33.) Mr. Easterly has been appointed special master in several mass tort, or class actions, to review, analyze and recommend amounts for fees and costs in those matters. (Tr. Pp. 22-33.) In approving the costs in these other cases, Mr. Easterly testified as follows:

I, myself, would come along and I would look to verify (a) that the costs and expenses were generally what I would expect if I were involved in the litigation as a plaintiff. And I've hired a lot of expert witnesses. I know that they're expensive. I've paid for a lot of transcripts. I know court reporters can get expensive. But to look at those and then look to see if there's anything in a spot check that really causes me concern before I recommend to a court, both in writing and orally, that I think it is a fair and reasonable cost to be assessed and charged.
Do I audit each and every item? No, your Honor. It would be impossible to audit it. It would be — it would be economically unreasonable for a certified public accountant to conduct what they call an audit where they trace back everything. And do we miss costs? I'm certain that we have. Have we included a cost that maybe should not have been over the years? I'm certain that we have. But in terms of economic feasibility to get these matters examined, I think the work product we come through with is pretty good. It hasn't been written up on the front page of the Times-Picayune or the Advocate yet, and I hope it never will be.

(Tr. Pp. 83-84.)

An objection was made to the fact that several attorneys attended each deposition and in one case, ten plaintiffs' attorneys attended. (PSC Exhs. 12 & 13, June 10-11, 1998 dep.) There was even a suggestion that the state court judge ordered the PSC to have only two attorneys attend a deposition. (Tr. Pp. 768-769.) However, the state judge had ordered that only two attorneys conduct a deposition as the defendants did not want a multiplicity of lawyers bombarding them with questions at each deposition. (Tr. P. 769.) Mr. Schmolke testified that it was invaluable having the other attorneys present during the depositions. He testified:

A That's different from having them come. Lewis Unglesby, Jerry McKernan and the Group I had are some of the most accomplished trial lawyers in the South. Lewis could bend over and whisper in my ear some of the most invaluable stuff. He couldn't open his mouth, but having him there, or Jerry, was priceless to my clients.

(Tr. P. 769.) The Court finds that it was reasonable to have this number of attorneys attend the depositions due to the complexity of the matters involved and the number of interests represented and will recommend that all travel expenses be approved as for the common benefit of the group.

The following travel and related costs are recommended for approval as expended for the common benefit of the group:

• American Express (B.1-7) $5,129.93 • City National Bank (B. 283-287) 13,192.39 • First Bankcard Center & First USA (B. 799-807, 812-814) 5,774.04 West Page • Gordon McKernan (B. 830-841) 1,900.23 • Holly Clegg-Mike Clegg Reimb. (B.981-983) 1,132.91 • La. Aircraft, Inc. (B. 1306-1333) 11,416.33 • La. Aircraft, Inc. (B. 1334-1354) 12,694.05 • McKernan Law Firm (B. 1488-1495, 1540-1558) 1,725.36 • McKernan Law Firm (B. 1616-1629) 1,438.48 • Michael V. Clegg (B.1861-1863, 1868-1871) 971.16 • Michael V. Clegg (B. 1884-1887) 1,224.98 • Paymentech (B. 2013-2019, 2021-2036) 12,239.97 • Riverside Transportation (B. 2139-2144) 527.33 • Robert H. Schmolke (B. 2153-2211, 2212-2283, 2284-2345, 2346-2483, 2537-2549, 2553-2658, 2789-2823) 34,349.12 • Talbot, Carmouche & Marcello (B. 3485-3487, 3495-3497) 1,025.39 • The Ritz Carlton (B. 3796-3798) 1,660.54 • Unglesby, Koch & Reynolds (B. 3834-3837, 3838-3839, 3855-3856, 3869-3872, 3918-3919, 4070-4099) 5,471.55



The charges for the court reporter services in connection with the depositions of the experts should be listed in this section as litigation costs. Ms. Adele Owen, the associate attorney working with Mr. Schmolke as liaison counsel and lead counsel on the issue of liability, testified that about 82 liability experts' depositions were taken, including seven PSC experts. (Tr. P. 341, PSC Exh. 12.) Further, although over 800 depositions were taken of the plaintiffs, Mr. Carmouche testified that they obtained copies of only a few of the plaintiffs when they felt the testimony was important. The deposition testimony would have to be important to the issue of liability, to a particular medical problem, or the plaintiff would have had to be a trial, or bellwether, plaintiff in order for them to order a copy of the deposition. (Tr. Pp. 855-857.) These purposes are for the common benefit of the group and the Court will recommend that these expenses, $2,888.30 (B. 1373-1380), $377.00 (B. 1381-1383) and part of the $3,053.30*fn11 (B. 1384-1392), be approved as common expenses.

To get just a rough idea of the individual costs of these depositions, the Court divided the total amount charged, reduced by the $2,888.30 and $377.00 above, by 82 and 75 (82-7) depositions and determined that each expert deposition would cost approximately $600.00 — $700.00. This is a reasonable amount for expert depositions (B. 1389 & 1390), and should be charged as common benefit expenses. Some of the court reporters' charges are also included in the reimbursements to the attorneys and will be included in the miscellaneous section since they are mixed with other types of charges.

The following court reporter charges are recommended for approval as reasonable expenses incurred for the common benefit of the group:



Next, the Court must consider the expenses of the nurses hired in this matter. The nurses were hired to take the medical and work histories of the plaintiffs, to assign the plaintiffs to different doctors depending on their symptoms, to make reports and consult with the treating physicians. (Tr. Pp. 607, 614-616.) Certainly the time the nurses spent consulting with the doctors and performing other functions would benefit all plaintiffs as these consultations and research helped the doctors prove causation. At first glance, the time spent interviewing the plaintiffs and assigning them to doctors seems more attenuated, however, this information was obtained from the plaintiffs well before discovery began. Sandie Van Oss started the interviews in August of 1997(B.3370) and discovery of the plaintiffs did not begin until June of 1998 (Tr. P.452). If this information had been obtained solely for the purpose of answering discovery requests, there would be no benefit to the other plaintiffs. However, this information was used to form the data base of symptoms and injuries the plaintiffs had in order to direct the plaintiffs to the correct doctor and to submit to the doctors for their consideration regarding causation. As explained above, this inform was invaluable in helping prove causation and should be allowed as a common benefit expense. Thus, the following expenses, less any Holiday Inn expenses, are recommended for approval as having benefitted the group:

• Jeri Hinds, Bates 1253-1257:

B.1253-1254 $1,150.00 B.1257 interviews: 3 hrs x $50/hr. = $150 150.00 B.1257 transcription to updated format 587.50 B.1257 Meetings and seminars 10 hrs. — 7 hrs.@ Holiday Inn = 3 hrs. x $50/hr. 150.00 $2,037.50

• Kris Fryoux, Bates 1293-1299:

B.1295 interviews: 10 hrs x $50/hr. = $500 500.00 B.1299 converting to new forms (4 hrs.) 200.00 Meetings w/Dr. Davis & meetings (3 hrs.) 150.00 Converting (3 hrs.) 150.00 Interviews (12-7 Holiday Inn) 5 hrs. x $50/hr. = $250 250.00 $1,250.00

• Robin Comeaux, Bates 3355-3360:

B.3357 interviews 19 hrs. x $50/hr. = $950 $950.00 B.3360 interviews (22 hrs. — 7 hrs. Holiday Inn) = 15 hrs. x $50/hr. = $750 750.00 $1,700.00

• Sandie Van Oss, Bates 3361-3407:

B.3361, 3363, 3365, 3382, food $248.34 B.3370-1 Aug. '97 interviews $2470 2,470.00 Literature search & review 100.00 B.3372-4 Sept.'97 interviews $5630 5,630.00 B.3375-7 Oct.'97 interviews $6050 6,050.00 Other 300.00 B.3378-9 Nov.'97 interviews $1930 1,930.00 Other 800.00 B.3385-7 Dec.'97 interviews $4980 4,980.00 B.3388 Consultation & other 1,350.00 B.3391-2 Jan.'98 interviews $1550 1,550.00 Consultation & other 650.00 B.3395-6 Feb.'98 interviews $1770 1,770.00 Consultation & other 300.00 B.3399-3400 March'98 interviews $2570 2,570.00 Office expenses 183.45 B.3401-2 April'98 interviews $3055 3,055.00 B.3405 May — Dec.'98 interviews $1640 1,640.00 Consultation & other 9,258.38 B.3406-7 April'99 Other 1,620.00 $46,455.17 Work. Comp. Refund for Sandie Van Oss (6,890.00) $39,565.17



Factfinders, Inc. and Investigative Bureau of America, Inc. submitted bills for investigative work. Mr. Schmolke (Tr. P. 725) explained that these agencies took statements from numerous fact witnesses, ran background checks on all Georgia Gulf witnesses, all Georgia Gulf's expert witnesses, and the CEOs of Georgia Gulf. They also helped find some of the plaintiffs, and Mr. Stephens testified that the bills to find the plaintiffs amounted to about $15,000 and should not be included as a common benefit costs. (Tr. P. 154.) After reviewing the bills, the Court finds that the explanation of the work performed by these investigative agencies are otherwise consistent with the descriptions in the bills and were for the common benefit of the group. For example, Factfinders, Inc. billed for investigative time, pages transcription, photographic costs, reference book, data acquisition, long distance phone charges and video tapes at Bates 762 and 756. These bills were also checked against the bills from Factfinders that were reimbursements to the attorneys and mixed with other charges. The invoice numbers for the bills at Bates 3476 and 3477 are not duplicates of those listed below.

Thus, the total amount recommended for approval as common benefit expenses are as follows:

• Factfinders, Inc. (B. 705-791) $48,797.02 • Investigative Bureau of America, Inc. (B.1209-1214) 1,702.25 $50,499.27

Less expenses for GGLG only $-15,000.00


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