Howmedica Osteonics Corp., v. Zimmer, Inc., Centerpulse Orthopedics, Inc. (Opinion May 23, 2018)

If you set aside a park bench for all those people on planet Earth who are utterly fascinated by the topic of prejudgment interest, the authors of A2C – together & alone – would share a quiet lunch, discussing PJI while tossing crumbs to the pigeons.

In that spirit, we report that Senior District Judge Walls from the District of New Jersey recently offered an opinion granting attorneys’ fees & costs, but no prejudgment interest, in a case of alleged infringement brought way back in 2005. In support of the decision, Judge Walls observes:

Judge Walls notes that the attorneys’ fees were reasonable except for those “hours billed due to inexperience, hours billed for tasks that should have been performed by more cost-effective actors, and hours and tasks that took an excessive amount of time to complete.”  Included in the opinion, but not replicated here, are details regarding hourly billing.*

As for prejudgment interest, however, Judge Walls provided the following justification for not granting the request:

We sit on our bench feeding pigeons, while struggling mightily to understand the economic logic of this decision.  Specifically, Judge Walls finds that there was deceit by the plaintiff over the course of a decade; and that attorneys’ fees are correspondingly justified… but there is no basis for affording the defendant the benefit of any compensation related to the time-value of its money?

Within the confines of the courtroom, this may make sense.

From the purview of our park bench, it is incoherent to us (and the pigeons).

From the opinion, it appears that prejudgment interest is just one in the line of many additional ways to exact money.  What appears to have been lost is that if the money was rightfully remitted by the losing party, then the time value of that money should also be considered.   If Judge Walls is operating with some conceptual economic cap to compensation (and below we provide evidence to suggest the possibility of such conceptual caps), the attorneys’ fees should arguably have been reduced, and then been adjusted for the time value of money to arrive at roughly the same monetary compensation.

* An interesting side-item from Judge Walls: despite what we would have assumed to be a relatively efficient market for legal services, an economic cap evidently exists on the professional value available from attorneys of $900/hour.