                       Revised January 21, 2002

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                           _______________________

                                 No. 00-51101
                           _______________________

                           ANTONIO LEBRON, et al.,

                                                       Plaintiffs-Appellees,

                                   versus

                   UNITED STATES OF AMERICA, et al.,

                                                       Defendants,

                       UNITED STATES OF AMERICA,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________

                              January 15, 2002

Before DAVIS and JONES, Circuit Judges, and BARBOUR,* District
Judge.

EDITH H. JONES, Circuit Judge:

          Carmen     and     Antonio   Lebron   sued    the   United   States

individually and as next friends of their daughter, Karina, under

the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et

seq., for damages suffered as a result of an Army doctor’s medical

malpractice at Fort Hood, Texas.        The doctor’s negligent delivery


     *
     District Judge of the Southern District of Mississippi,
sitting by designation.
of Karina left her with severe, permanent brain damage.                                The

Government admitted liability but contested damages. After a bench

trial, the district court awarded the plaintiffs $32,676,410 in

all: $20,647,488 for Karina; $4,320,000 each to Carmen and Antonio

for   medical     and     attendant     care     for   Karina   until     her    age    of

majority; an additional $1,783,156 to Carmen; and an additional

$1,605,766 to Antonio.1           The court also awarded the plaintiffs

costs, including fees for services rendered by Karina Lebron’s

guardian ad litem (GAL).

               The Government appeals on three grounds, contending (1)

that the “maximum recovery rule” requires a reduction of $9.4

million    in    certain     intangible         damages   awarded    to    the    three

plaintiffs; (2) that because the $20.6 million in damages awarded

to    Karina    exceeds     the   $20    million       specified    in   the    amended

administrative claim that the Lebrons filed on her behalf, the

$20.6 million should be reduced to $20 million; and (3) that the

cost of certain legal services provided by the GAL, who is an

       1
          Karina Lebron’s $20.6 million award included about $10.6
million for medical and attendant care after her eighteenth
birthday and about $1 million for her loss of earning capacity,
plus the following noneconomic damages:

       $ 1.5    million   for past    and   future     pain/suffering,
         2.0    million   for past    and   future     mental anguish,
         2.5    million   for past    and   future     physical impairment,
         2.0    million   for past    and   future     mental impairment,
         1.0    million   for past    and   future     disfigurement
       $ 9.0    million   - total

Each parent received certain economic damages plus $1.5 million
apiece for loss of consortium resulting from Karina’s injuries.

                                            2
attorney, should have been deducted from Karina’s recovery and

should not have been taxed as costs to be paid by the Government.

The Government does not contest any other damages awards.

            We conclude as follows.   (1) The maximum recovery rule

requires a reduction in the awards contested by the Government, and

a remand is necessary to clarify whether portions of Karina’s

medical expenses award are duplicative.    (2) Because the Lebrons

have not met the requirements of 28 U.S.C. § 2675(b) for obtaining

damages exceeding the amount stated in the administrative claim,

Karina cannot recover more than $20 million.     (3.) The district

court erred in failing to determine what part of the services

rendered by the GAL are legal fees to be awarded out of the

recovery.   On remand, the court must make this determination.




                                 3
              (1)   Whether the “Maximum Recovery Rule”
                    Requires a Reduction of $9.4 Million in
                    Certain Intangible Damages2

              A district court’s damages award is a finding of fact,

which this court reviews for excessiveness using the clear error

standard.      Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339

(5th Cir. 1990).     Put otherwise, “[w]e do not reverse a verdict for

excessiveness except on the strongest of showings, but when a

jury’s award exceeds the bounds of reasonable recovery, we must

suggest a remittitur ourselves or direct the district court to do

so.”       Dixon v. Int’l Harvester Co., 754 F.2d 573, 590 (5th Cir.

1985).      “[W]hen this court is left with the perception that the

verdict is clearly excessive, deference must be abandoned.” Eiland

v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995).   This



       2
           The Lebrons preliminarily suggest that the Government
waived its arguments on this issue by failing to raise them in a
motion for new trial or in some other post-judgment motion.
Ordinarily “there can be no appellate review of allegedly excessive
or inadequate damages if the trial court was not given the
opportunity to exercise its discretion on a motion for a new
trial.” Bueno v. City of Donna, 714 F.2d 484, 493-94 (5th Cir.
1983). Yet we agree with the Eleventh Circuit that “[w]here, as
here, damages are set by the judge instead of a jury, issues raised
during trial and ruled on by the trial court need not be raised
again in a motion for new trial in order to preserve them for
review on appeal.” Johnson v. United States, 780 F.2d 902, 907
(11th Cir. 1986) (vacating FTCA award). The record shows that the
Government raised the issue of how to avoid excessive damages
awards in a pre-trial memorandum that cited and applied this
circuit’s maximum recovery rule.     In its memorandum and order
setting forth findings of facts and conclusions of law pursuant to
Fed. R. Civ. P. 52(a), the district court responded to the
Government’s invocation of the rule. This court, therefore, will
consider whether the damages awards were excessive.

                                    4
court’s power to grant a remittitur of excessive damages is the

same as the district court’s.     Dixon, id.

            “[W]e apply the loosely defined ‘maximum recovery rule’

when deciding whether a remittitur is in order.      This judge-made

rule essentially provides that we will decline to reduce damages

where the amount awarded is not disproportionate to at least one

factually similar case from the relevant jurisdiction.”    Douglass,

897 F.2d at 1344 (emphasis in original).3          The rule applies

regardless of whether the award was made by a jury.     Id. at 1337,

1339 n.3, 1344.    The rule “does not necessarily limit an award to

the highest amount previously recognized in the state;” indeed, the

rule “does not become operative unless the award exceeds 133% of

the highest previous recovery in the [relevant jurisdiction]” for

a factually similar case.    Id. at 1344 n.14.   Because the facts of

each case are different, prior damages awards are not always

controlling; a departure from prior awards is merited “if unique

facts are present that are not reflected within the controlling

caselaw.”   Id. at 1339.   See Wheat v. United States, 860 F.2d 1256,

1260 (5th Cir. 1988); Wakefield v. United States, 765 F.2d 55, 59-60

(5th Cir. 1985).




     3
          A number of other circuits employ a maximum recovery rule
in reviewing damages awards. See, e.g., Shockley v. Arcan, Inc.,
248 F.3d 1349, 1362 (Fed. Cir. 2001); Koster v. Trans World
Airlines, 181 F.3d 24, 36 (1st Cir. 1999); Spesco, Inc. v. General
Elec. Co., 719 F.2d 233, 240-41 (7th Cir. 1983).

                                   5
             The district court applied the maximum recovery rule in

this case by relying on a number of state and federal cases

applying Texas law in which larger aggregate sums were awarded than

the total amount that the court decided to award in this case.4

None of these awards is officially reported, except for one that

was   reversed   on   appeal   in   a   reported   decision,   on    which   we

therefore do not rely.      The same is true of some of the decisions

cited by the plaintiffs.5       We decline to use unreported decisions

as benchmarks for this purpose.             Unreported decisions generally

lack precedential value.       See, e.g., Tex. R. App. P. 47.7; 5th Cir.

R. 47.5.4; Exxon, Co., U.S.A. v. Banque De Paris Et Des Pays-Bas,

889 F.2d 674, 675 (5th Cir. 1989) (“under Texas law an unreported

opinion is not precedential”).              Our court has not previously

considered unreported decisions when invoking the maximum recovery

rule.     See In re Air Crash Disaster Near New Orleans, La. on July

9, 1982, 767 F.2d 1151, 1156 (5th Cir. 1985) (citing “highest

reported”    awards   in   relevant     jurisdiction);   Hansen     v.   Johns-


      4
          Texas law controls the measure of damages in this case.
See Ingraham v. United States, 808 F.2d 1075, 1081 (5th Cir. 1987);
Wakefield, 765 F.2d at 58 (“The components and measure of damages
in FTCA cases are taken from the law of the state where the tort
occurred.”).
      5
          One of the unreported state court decisions cited by the
plaintiffs was affirmed on appeal in a published decision, but (1)
the appellate court’s decision states only the plaintiffs’
aggregate damages awards, without distinguishing between pecuniary
and non-pecuniary components; and (2) each of these aggregate
awards is lower than the corresponding aggregate amount for which
the Government argues in this case.

                                        6
Mansville Prods. Corp., 734 F.2d 1036, 1047 (5th Cir. 1984) (award

was “substantially greater than any we have discovered in other

reported    cases”)    (emphasis   added).        And    from   a    practical

standpoint, the comparability of unreported decisions is hard to

judge from the records available.          The Lebrons offer a mix of

summary reports of verdicts from an unofficial publication, The

Blue Sheet of Texas, and attorney affidavits.           Use of such hearsay

would create    more   problems    than   it   would    solve   by   provoking

irrelevant disputes over the comparability of unreported decisions.

            The Government argues for two particular applications of

the maximum recovery rule.     We address them in turn.

     A.     Award to Parents for Loss of Consortium

            First, the Government argues that the court’s award to

Carmen and Antonio Lebron for loss of consortium should be reduced

from $3 million ($1.5 million each) to $2 million ($1 million

each).    In Ingraham v. United States, 808 F.2d 1075, 1078, 1081-82

(5th Cir. 1987), an FTCA case that arose in Texas, a parent was

awarded $750,000 for loss of society and other losses arising from

severe brain injuries suffered by her child.            This court rejected

the Government’s argument that the $750,000 award was so excessive

as to warrant correction on appeal.            Id. at 1082.      This is the

highest award we have found in a reported case for loss of

consortium awarded to a parent for non-fatal injuries to his or her

child.    Cf. Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420, 1427



                                     7
n.13, 1428-29 (5th Cir. 1992) (rejecting challenge to $1.275 million

total award to parent under Texas law, arising from death of child

in accident, where award included $612,500 award for loss of

companionship and society).

            The   Government,   treating   Douglass   as   if   that   case

formulated a rigid cap on application of the maximum recovery rule,

suggests we add 33% to the Ingraham award for each parent.             This

would result in $1 million to each parent.        We disagree with the

Government’s characterization of Douglass because it framed a

guideline for invoking rather than a formula for capping recoveries

under the rule.     Douglass, 897 F.2d at 1343, n.14 (the “rule does

not become operative unless the award exceeds 133% of the highest

previous recovery in the State”) (emphasis added).         Nevertheless,

the Government’s concession is generous, and we agree that the

Lebrons’ award is too high.      We adopt the Government’s suggestion

to reduce the Lebrons’ total loss of consortium award to $2

million.6


     6
          We express no view on whether this amount is unreasonably
high in relation to the intangible damages award that we approve
for Karina, who indisputably suffered the greater loss. Because
the Government has conceded that Carmen and Antonio Lebron’s
intangible damages award should be reduced to no less than $2
million, the Government has forfeited its opportunity to argue that
the award should be lower when considered in relation to their
daughter’s award for intangible damages.          Cf. Roberts v.
Williamson, 52 S.W.3d 343, 350-52 (Tex. App. - Texarkana 2001)
(affirming awards of $1.235 million to child and parents for
intangible losses suffered by child and award of $75,001 to parents
for loss of consortium), petition for review filed (Aug. 20, 2001),
motion to dismiss denied (Nov. 1, 2001).

                                    8
     B.     Awards to Karina for Various Intangible Injuries

            Second, the Government argues, relying on St. Paul Med.

Ctr. v. Cecil, 842 S.W.2d 808 (Tex. Civ. App.-- Dallas 1992), and

Pipgras v. Hart, 832 S.W.2d 360 (Tex. Civ. App.–- Ft. Worth 1992),

that the court’s award to Karina Lebron for intangible injuries

should be reduced from $9 million to $600,000.               In Cecil, a case

involving serious brain injuries caused to an infant during his

delivery, the jury awarded the plaintiffs $25,000 for past physical

pain and mental anguish, $50,000 for future physical pain and

mental anguish, $25,000 for past physical impairment, and $50,000

for future physical impairment: $150,000 in all for intangible

damages.        842 S.W.2d at 811.          In Pipgras, a case involving

seemingly less serious brain injuries to a four-year-old child, the

court rejected challenges to awards of $50,000 for future physical

impairment and $250,000 for physical pain and mental anguish.                832

S.W.2d at 365-67.

            The intangible awards in Cecil and Pipgras are not

precisely analogous to the intangible awards in this case, which

were made for categories of injury that overlap with or otherwise

differ from the categories of harm articulated by the trial court

here.     Cf. Douglass, 897 F.2d at 1345.         And in neither Cecil nor

Pipgras    is    there   an   award   for   disfigurement,    a   category   of

noneconomic damages that clearly applies to Karina.               Jones v. Wal-




                                        9
Mart Stores, Inc., 870 F.2d 982, 990 (5th Cir. 1989).7    Moreover,

the injuries at issue at least in Pipgras are significantly less

severe than the injuries suffered by Karina.        With all these

qualifications, however, the awards in Cecil and Pipgras permit

some comparison.

          The $600,000 aggregate figure requested by the Government

is based solely on comparison with Cecil and Pipgras.      A recent

Texas case, however, supports a higher award and undercuts the

Governments’ proposed reduction, though not the general principle

of comparison.   In Roberts v. Williamson, 52 S.W.3d 343, 347, 350-

51 (Tex. App.–Texarkana 2001), petition for review filed (Aug. 20,

2001), motion to dismiss denied (Nov. 1, 2001), the court rejected

challenges to awards for the benefit of a child amounting to $1.235

million in non-pecuniary damages -- $335,000 for past and future

physical impairment, $850,000 for physical pain and mental anguish,

and $50,000 for disfigurement -- arising from brain injuries

analogous to those sustained by Karina in this case.   In Williamson

as in this case, the brain injuries were sustained in the first

days of the child’s life.   Williamson represents by far the highest

reported judgment we have found applying Texas law to comparable

facts.

     7
          The disfigurement in this case is severe.         As the
district court found, the Government’s physician fractured Karina’s
skull, creating a fist-size cavity filled with tissue and cerebral
fluid, and crushed her right eye socket. This damage will never
heal. Her posture is slouched, and she is prone to drool because
her jaw uncontrollably hangs open.

                                 10
           The intangible damages in Williamson are many times as

high as those in Pipgras and Cecil, yet the intangible damages

awarded   by   the   district   court     here    outstrip      the   verdict   in

Williamson by a factor of seven.             The purpose of the maximum

recovery rule is to bring rough consistency into comparable damages

awards.    Whether Karina’s award is viewed on an item-by-item

comparison of specific noneconomic damages components or on an

aggregate basis, it is grossly excessive.                 Horrible as are the

facts underlying the judgment, they are not dissimilar to the facts

in Cecil and Williamson, and “we find no novel grounds for such a

grand departure” in the award of damages.             Douglass, 897 F.2d at

1345.     While      recognizing   that     a     court-ordered       remittitur

necessarily involves a subjective component, Caldarera v. Eastern

Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983), we conclude that

a reduction of Karina’s total noneconomic damages award from $9

million to $1.25 million satisfies the maximum recovery rule.

           One    additional    contention       raised    by   the   Government

requires a response.       Noting that the district court failed to

explain the reasoning for its specific awards, the Government

argues that the district court’s noneconomic damages award may have

been duplicative of its medical expenses award.                 In Sosa v. M/V

Lago Izobal, 736 F.2d 1028 (5th Cir. 1984), this court concluded

that to the extent that certain rehabilitative items were not

medical expenses but devices to alleviate physical suffering or



                                     11
mental anguish, they duplicated a separate award for “pain and

suffering, bodily injury, mental anguish, and loss of the capacity

for the enjoyment of life.”           Id.8    This court remanded for a

determination of which items were compensable medical expenses and

which duplicated the award for pain and suffering.            See id.

               As in Sosa, we cannot determine from the trial court’s

opinion in this case whether part of the medical expense award may

duplicate part of the awards for intangible harms.           For instance,

the former award included equestrian and aquatic therapy, which the

court described in terms suggesting that it was at least in part

compensating for the emotional harms caused by the defendant’s

negligence. We therefore remand for a determination of which items

were       compensable   medical   expenses   and   which   duplicated   the

intangible awards.

               If the district court concludes on remand that the

medical expense award and intangible injuries awards are not

duplicative, then our remittitur will remain intact.                If the

district court concludes that the awards are duplicative, it must

make appropriate reductions in the awards.




       8
          The district court had awarded the plaintiff a sum for
rehabilitation expenses consisting of “39 items, such as a speaker
telephone service, an electric toothbrush, and a beverage holder,
that will allow Sosa to perform certain simple tasks on his own and
‘make him more comfortable despite his severe injuries.’” Sosa,
736 F.2d at 1034 (quoting district court).

                                      12
           (2)   Whether FTCA § 2675(b) Requires That the
                 $20.6 Million Award to Karina Lebron Be
                 Reduced to the $20 Million Sought in Her
                 Administrative Claim

           In May 1996, the Lebrons filed an administrative claim

seeking $14 million on behalf of Karina.        In April 1998, they filed

an amended administrative claim for Karina seeking $20 million. In

their original    complaint,    filed    in   May   1999,   they   sought   an

unspecified amount.       After the Army denied the administrative

claim, they moved in February 2000 to amend their complaint to seek

$55 million for Karina.        The United States opposed the motion,

arguing that the Lebrons had not met the standard set out in 28

U.S.C. § 2675(b), which provides that an FTCA action

           shall not be instituted for any sum in excess of the
           amount of the claim presented to the federal agency,
           except where the increased amount is based upon newly
           discovered evidence not reasonably discoverable at the
           time of presenting the claim to the federal agency, or
           upon allegation and proof of intervening facts, relating
           to the amount of the claim.

The   district   court   granted   the   Lebrons’    motion.       The   court

ultimately awarded Karina about $20.6 million.

           On appeal, the Government argues that the district court

erred in allowing the Lebrons to seek damages in excess of the $20

million specified in her amended administrative claim. In light of

§ 2675(b), this contention is correct.          Karina’s award can be no

more than $20 million.9


      9
          The Government’s brief might be read to suggest that even
if our application of the maximum recovery rule, supra, ultimately

                                    13
            The plaintiff in an FTCA suit who seeks to exceed his

administrative claim has the burden to show that the addition is

based on newly discovered evidence or intervening facts within the

meaning of § 2675(b).         See, e.g., Michels v. United States, 31 F.3d

686, 689 (8th Cir. 1994); Spivey v. United States, 912 F.2d 80, 85

(4th Cir. 1990).       To satisfy this burden, the plaintiff must show

that the evidence was not “reasonably capable of detection at the

time the administrative claim was filed.”               Low v. United States,

795 F.2d 466, 470 (5th Cir. 1986). In other words, “the information

must not have been discoverable through the exercise of reasonable

diligence.”      Id.

            In    Low,       the   plaintiff   sought    $1,275,000   in   her

administrative claim for injuries done to her son Brian during

childbirth.      In court, she later sought $12 million for the same

injuries.    The district court awarded the plaintiff $3.5 million,

asserting   that       the   plaintiff   had   presented    newly   discovered

evidence or intervening facts under § 2675(b) concerning “the

extent of Brian’s condition, the prospects for his recovery, the



results in an aggregate damages award for Karina of $20 million or
less, Karina’s damages award must be reduced by an additional
$647,488. We reject any such contention. Section 2675(b) merely
caps Karina’s aggregate damages award.      If the award has been
reduced below the cap for other reasons, § 2675(b) does not require
reducing an award any further. See Reilly v. United States, 863
F.2d 149, 173 n.19 (1st Cir. 1988). Cf. Martinez v. United States,
780 F.2d 525, 530 (5th Cir. 1986) (reading § 2675(b) “to allow
plaintiffs to prove damages in excess of the administrative claim,
but to forbid the actual recovery to exceed the amount of the
administrative claim”).

                                         14
limited extent of any recovery, and . . . his life expectancy.”

Id. at 470. This court disagreed with the district court’s reading

of the requirements of § 2675(b).        We concluded that the evidence

cited by the district court did not meet these requirements because

it went only to the precision with which the severity of Brian’s

injury could have been known.

            The [new] evidence does not alter the fact . . . that
            when the administrative claim was filed Mrs. Low already
            knew that Brian had cerebral palsy, a seizure disorder,
            and was blind, deaf, and mentally retarded. There is no
            evidence that these conditions became worse or that other
            conditions developed after the claim was filed. . . .
            This is not a case in which the claimant did not know or
            reasonably could not have known the basic severity of
            Brian’s handicap; it was indubitably of grave severity
            and of unknown -- perhaps permanent -- duration. . . .
            [I]f the exact nature, extent and duration of each
            recognized disability must be known before § 2675(b) will
            be given effect, that section will be rendered useless;
            and the government will be unable to evaluate any claim
            made against it without the threat that, if it does not
            settle, its liability may increase substantially. Such
            matters are of their nature dubious, partaking of the
            uncertainties of life itself in which unexpected deaths
            and equally unexpected recoveries occur.

Id. at 471.    This court remanded for a reduction of the damages

award to $1.275 million.

            Low makes clear that new information cannot surmount the

bar created by § 2675(b) if the information merely concerns the

precision   with   which   the   nature,   extent,   or   duration   of   a

claimant’s condition can be known.           Information can be newly

discovered evidence or an intervening fact, however, if it sheds

new light on the basic severity of the claimant’s condition -- that



                                    15
is, if it materially differs from the worst-case prognosis of which

the claimant knew or could reasonably have known when the claim was

filed.   See, e.g., Fraysier v. United States, 766 F.2d 478, 481

(11th Cir. 1985), cited in Low, 795 F.2d at 470.        Requiring the

plaintiff to guard against a worst-case scenario in preparing his

claim gives the Government full notice of its maximum potential

liability in the case. This encourages settlement of FTCA cases in

accordance with the statute’s purposes.     See Low, 795 F.2d at 470-

71; Reilly v. United States, 863 F.2d 149, 172-73 (1st Cir. 1988).

          In this case, the district court concluded that when the

administrative claim was filed, “it was impossible to determine the

nature and extent of [Karina’s] injuries because reliable cognitive

and motor/sensory tests could not be conducted until Karina was

four to five years old.”   The court pointed to evidence that a life

care plan could not be drafted for Karina until she was about five.

Citing tests and an examination conducted after the filing of the

claim,   the   court   concluded    that   “Karina’s   condition    was

significantly worse than believed when the administrative claim was

filed. . . .   Karina’s needs and the care and treatment she will

require will cost nearly twice what was previously expected.       It is

not just the valuation of those needs, but the kind and frequency

of care that have increased.”

          This court rejected similar reasoning in Low, a case that

is practically indistinguishable. Karina’s original administrative



                                   16
claim shows that the Lebrons knew that Karina’s condition was

“indubitably of grave severity and of unknown -- perhaps permanent

-- duration” and that they expected additional impairments to

develop.    Low, 795 F.2d at 471.        The claim enumerates a number of

serious injuries sustained during Karina’s “traumatic” delivery,

including   skull    fractures,    hemorrhages,      and   brain   contusions;

states that she “developed seizures at four hours of life” and

“suffers from spasticity, poor head control and . . . developmental

delay;” and predicts “additional permanent physical and mental

impairments.”   In sum, in this case, “as in Low, the basic severity

of the child’s condition was known and recited in the claim form.”

Reilly, 863 F.2d at 172.      Compare United States v. Alexander, 238

F.2d 314, 318 (5th Cir. 1956), cited in Low, 795 F.2d at 470.                 A

reasonable worst-case prognosis would have predicted what actually

came to pass.    It follows that § 2675(b) barred the Lebrons from

seeking    damages   in   excess   of    the   $20   million   stated   in   the

administrative claim.10



     10
          Because this conclusion is required by what the Lebrons
knew or reasonably could have known at the time Karina’s original
administrative claim was filed, it is unnecessary to decide the
merits of the Lebrons’ contention that under § 2675(b), the
relevant question is what they knew or reasonably could have known
at the time they “present[ed]” the claim, not what they knew or
could have known at the time they filed suit (or at some other
moment in the “administrative phase” of this litigation). See,
e.g., Husovsky v. United States, 590 F.2d 944, 954 & n.24 (D.C.
Cir. 1978). But see Spivey, 912 F.2d at 83, 85-86. Even if this
contention is correct, it would not affect the outcome of this
appeal.

                                        17
            (3)    Whether the District Court Erred in
                   Awarding All of the Guardian Ad Litem’s
                   Fees as Costs Taxable to the Government

            Karina’s        GAL,     Gary       Zausmer,       is    an    attorney     and   a

shareholder in a large and well-known law firm who has experience

in litigation concerning brain injuries.                       In August 2000, Zausmer

submitted a report and fee application seeking $260,000 for past

and future services. According to the district court, the services

provided by Zausmer included “monitoring depositions; reviewing

pleadings,    medical           records      and     evidence;      meeting      with   Karina

Lebron’s doctors; preparing for examination of witnesses; drafting

responses    to    certain        government          motions;      and    preparation     for

trial.”11    Zausmer’s report stated that Zausmer had already spent

between 170 and 200 hours of time on the matter, “including

approximately          75   hours       in    combined         trial      preparation      and

participation      in       a    four     day        trial,”    and       that   “additional

proceedings       in    this      action,          including        appellate     work,    may

approximate and conceivably exceed 100 hours.”                             The report also


     11
          Zausmer’s report indicates that his services also
included preparing for and conducting examination and cross
examination of witnesses, as well as “provid[ing] argument to the
Court to protect the interests of Karina Lebron.”

          The report also indicates that Zausmer regarded some or
all of his services as legal work not much different from legal
work that he performed on behalf of clients other than Karina.
“Substantial hours and efforts, in lieu of the performance of other
legal work on behalf of other clients, were devoted to pre-trial
preparation, depositions, mediations, . . . etc. and ultimately
trial -- all as the court-appointed Guardian ad litem for Karina
Lebron.” (Emphasis added.)

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stated that over “75 hours of additional time has been devoted by

legal assistants and associates of this law firm to assist the

undersigned.”    The report did not include the documentation then

required by local court rules to support claims for attorney’s

fees. The district court approved the application, concluding that

the entire expense of Zausmer’s services should be taxed against

the Government as costs.

            The district court did not distinguish which part of

Zausmer’s fees were costs and which part were legal fees to be

subtracted from the recovery.    The court acknowledged that many of

Zausmer’s services were “legal or quasi-legal” in nature, yet the

court concluded that Zausmer had provided them “as an officer of

the Court and not as an attorney.”     Any GAL would have provided the

services, the court said, even if the GAL had not been a licensed

attorney.    The court did not explain how a person who was not a

lawyer could have provided Karina with legal services.

            When the same person acts “as both a minor’s guardian ad

litem and as his attorney ad litem, only the person’s expenses in

the former role are taxable as costs under Fed. R. Civ. P. 54(d).”

Gibbs v. Gibbs, 210 F.3d 491, 506 (5th Cir. 2000) (citing duPont v.

Southern Nat’l Bank, 771 F.2d 874, 882 (5th Cir. 1985)).    “His fees

and expenses in the role of attorney ad litem would be treated as

any other attorneys’ fees.”     Id.    Under the American Rule, “the

prevailing litigant ordinarily may not collect attorney's fees from



                                  19
the loser.”     Sanchez v. Rowe, 870 F.2d 291, 293 (5th Cir. 1989)

(affirming denial of attorney’s fees to plaintiff in FTCA action).

Thus Zausmer’s expenses as attorney ad litem must be paid from

Karina’s recovery.    See Gibbs, 210 F.3d at 506.    To apply this rule

correctly, the district court was obliged to determine which of the

GAL’s expenses related to his role as GAL and which related to his

role as legal counsel for the children.             See id. at 507-08

(remanding for such a determination); duPont, 771 F.2d at 882 &

n.7, 888 (same); Franz v. Buder, 38 F.2d 605, 607-08 (8th Cir. 1930)

(same).

             This rule applies even though Zausmer was not formally

named Karina’s attorney ad litem.        When a GAL provides legal

services to his ward, they should be treated the same as if they

had been provided by any other attorney.

             The guardian ad litem is frequently not an attorney and
             if legal services are required, he must seek and employ
             counsel. Counsel obtained thereby on behalf of a ward or
             incompetent is in no different circumstance from counsel
             for any other litigant. An attorney who serves as both
             legal counsel and guardian ad litem does not thereby
             acquire any greater right to recover his fees than have
             his brethren who are hired directly by a litigant.

Gibbs, 206 F.3d at 507 (citations omitted) (quoting Kollsman v.

Cohen, 996 F.2d 702, 706 (4th Cir. 1993)).   For the same reason, it

makes no difference that Karina had separate retained counsel in

this case.    Were it otherwise, a GAL could get the expenses of his

legal work reimbursed as costs rather than fees by the simple

expedient of hiring a second attorney to serve as nominal outside

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counsel.   The question is not one of titles; it is whether the GAL

provided the minor with “the ordinary services of an attorney.”

duPont, 771 F.2d at 882.     At least some of Zausmer’s services

appear to have been legal.

           District courts have discretion in determining which

expenses fall on which side of the line between costs and legal

fees in any particular case.    Cf. Gibbs, 210 F.3d at 506-08.   In

this case, however, the district court overlooked that the work

done by Zausmer and other attorneys at his law firm went far beyond

work reimbursable as costs that is done to assess a minor’s claims

and to decide among possible courses of action on behalf of the

minor.   See id. at 507 (GAL’s initial task in ordinary case is “to

assess his wards’ potential claim of entitlement and decide what

course of action should be taken on behalf of his wards, i.e.,

litigate, settle or waive their claim”); id. (“The guardian ad

litem's presence is necessitated by the litigation and it is his

duty to determine policy regarding litigation.”) (quoting Kollsman,

996 F.2d at 706).

           Because Zausmer was successful in his efforts to obtain

recovery for Karina, compensation for his legal services chargeable

as fees should be awarded from her recovery.    Gibbs, 210 F.3d at

506.     The district court must re-evaluate which of Zausmer’s

expenses are chargeable as fees and which are chargeable as costs.




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                           CONCLUSION

          We VACATE in part and REMAND, directing the district

court in accordance with this opinion (1) to reduce certain of the

damages awards in the manner specified above; (2) to clarify

whether portions of the medical expenses award are duplicative;

(3) to apply a cap of $20 million to Karina’s aggregate recovery;

and (4) to award Zausmer fees and costs anew after calculating

compensation due for Zausmer’s legal services.

          VACATED and REMANDED with instructions.




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