KEARNEY v. BERGER

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Docket Number

No. 125, September Term, 2009.

Attorney(S)

Barry J. Nace (Jonathan B. Nace, Paulson Nace, PLLC, Washington, D.C.), on brief, for appellants. Thomas C. Marriner (Wharton, Levin, Ehrmantraut Klein, P.A., Annapolis), on brief, for appellee.

Judges

MURPHY, J., dissenting, which BELL, C.J. and ELDRIDGE, J. join.

Acts

The Public Health And Welfare — Civil Rights — Institutionalized Persons — Suits By Prisoners
The Public Health And Welfare — Civil Rights — Generally — Proceedings In Vindication Of Civil Rights

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Gail A. KEARNEY, Indi v. dually, etc., et al.

ORDER

LARRY HICKS, District Judge

This matter came before the Court for a fairness hearing on October 25, 2010, at 10:00 a.m., regarding the proposed settlement agreement in this action seeking class-wide improvements in medical care for prisoners at Ely State Prison (ESP). Plaintiffs and defendants each filed motions (Docket #166 and #168) asking this Court to approve the proposed settlement agreement, including the provision of negotiated attorneys' fees and costs. The Court has carefully reviewed the entire settlement agreement as well as the parties' moving papers. The Court has further reviewed objections from class members and responses by counsel to the same. The Court has heard oral argument from plaintiffs' and defendants' counsel at the fairness hearing. This order approves the settlement agreement and approves the payment of negotiated attorneys' fees and costs to plaintiffs in the lump sum amount of $325,000.

I. Procedural History

This is a class action lawsuit in which plaintiffs allege that defendants have provided unconstitutionally inadequate medical care for prisoners at Ely State Prison. In the amended complaint, plaintiffs seek declaratory and injunctive relief, but not monetary damages. (Docket #15). On March 31, 2009, the Court approved plaintiffs' motion for class certification, defining the class as "all prisoners who are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in Ely, Nevada." (Docket #40, at p. 12). On September 30, 2009, this Court denied defendants' motion for reconsideration of the stipulated discovery plan. (Docket #97). Settlement discussions between counsel began in January 2010, with Magistrate Judge Cooke conducting a settlement conference on June 10, 2010. (Fettig Decl., Martin Decl., Docket #141). On July 15, 2010, the parties jointly moved for approval of the proposed settlement agreement. (Docket #144). The proposed settlement agreement is at Docket #144-1. The parties also submitted a proposed Class Notice of Settlement, at Docket #144-2, which this Court approved on July 28, 2010. (Docket #146 and #147). The Court's order set the fairness hearing for October 25, 2010, directed class member objections to be filed by September 13, 2010, and directed the parties' responses to the objections to be filed by October 15, 2010. (Docket #146).

II. Discussion

A. Notice to the Class was Reasonable

Adequacy of notice to the class is the first issue that courts address when evaluating the fairness of a proposed class settlement. See, e.g., In re Immune Response Sec. Lit., 497 F. Supp. 2d 1166, 1170 (S.D. Cal. 2007). Rule 23(e) requires that notice be provided "in a reasonable manner to all class members who would be bound by the proposal." Fed.R.Civ.P. 23(e)(1). In the instant case, notice of the proposed class action settlement was accomplished by distributing a written notice to each ESP prisoner in both English and Spanish, and posting both English and Spanish versions of the notice in common areas throughout ESP, including the housing tiers, dining areas, law library, work areas, visitation areas, the laundry, the infirmary, and recreation areas. (Martin, McDaniel, and Fettig Declarations). The class notice was also added to the ESP orientation handbook, which each new prisoner receives upon arriving at ESP. ( Id.). Provision of notice in this manner is sufficient in institutional litigation. See, e.g., Ruiz v. McKaskle, 724 F.2d 1149, 1152-53 (5^th Cir. 1984) (notice placed in each housing unit's "writ room," published in prison's newspaper, and posted in housing units); Diaz v. Romer, 801 F. Supp. 405, 408 (D. Colo. 1992) (notice posted in prison housing units and law libraries); Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1314 (M.D. Ala. 2004) (notice placed on bulletin boards in dormitories, law libraries, and dining areas). The notice provided to the class in the instant case was reasonable, adequate, and sufficient to inform class members of the terms of the settlement and their rights related to the proposed settlement.

B. Settlement Agreement is Fair, Adequate, and Reasonable

1. Standard under Fed.R.Civ.P. 23(e)

Federal Rule of Civil Procedure 23(e) provides that a class action shall not be dismissed or compromised without the approval of the court. "If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate." Fed.R.Civ.P. 23(e)(2). Rule 23(e) requires court-approval of settlements in class actions to protect "unnamed class members from unjust or unfair settlements affecting their rights when the representatives . . . are able to secure satisfaction of the individual claims by a compromise." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The court must determine "whether a proposed settlement in a class action is fundamentally fair, adequate, and reasonable." Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

In assessing the fairness, adequacy, and reasonableness of a settlement agreement, the court may consider some or all of these factors: (1) the strength of plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining a class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. See Molski v. Gleich, 318 F.3d 937, 953 (9^th Cir. 2003) (citation omitted), overruled on other grounds, Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 617 (2010). Another formulation generally used in determining whether a class action settlement is fair, reasonable, and adequate includes these factors: (1) likelihood of recovery or success; (2) amount and nature of discovery or evidence; (3) settlement terms and conditions; (4) recommendation and experience of counsel; (5) future expense and likely duration of litigation; (6) recommendation of neutral parties, if any; (7) number of objectors and nature of objections; and (8) the presence of good faith and the absence of collusion. 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:43 (4^th ed. 2002).

In Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, the Ninth Circuit overruled the portion of Molski that involved the standard for determining when monetary relief predominates over declaratory and injunctive relief, and thus precludes certification of a Rule 23(b)(2) class. "To the extent Molski required the district court to inquire only into the intent of the plaintiffs and focus primarily on determining whether reasonable plaintiffs would bring suit to obtain injunctive or declaratory relief even in the absence of possible monetary recovery, see Molski, 318 F.3d at 950 n. 15, it is overruled." Dukes, 603 F.3d at 617. The part of Molski setting forth factors for determining whether a class action settlement is fair, adequate, and reasonable, Molski, 318 F.3d at 953, was unaffected by the Dukes decision.

The factors listed above are not exhaustive, and different factors may predominate in different contexts. See Torrisi v. Tuscon Elec. Power Co., 8 F.3d 1370, 1376 (9^th Cir. 1993). "The relative degree of importance to be attached to any particular factor will depend upon and be dictated by the nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and circumstances presented by each individual case." Officers for Justice v. Civil Service Comm'n of the City and County of San Francisco, 688 F.2d 615, 625 (9^th Cir. 1982). It is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness. Id. at 628.

The burden of proving the fairness of a settlement is on the proponents. 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:42 (4^th ed. 2002). "An initial presumption of fairness is usually involved if the settlement is recommended by class counsel after arm's-length bargaining." Id. "[T]here is a strong judicial policy that favors settlement, particularly where complex class action litigation is concerned." In re Syncor ERISA Lit., 516 F.3d 1095, 1101 (9^th Cir. 2008) (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9^th Cir. 1992)). Below, the relevant factors in the instant case are discussed.

2. Analysis of Factors

a. Strength of Plaintiffs' Case

The likelihood of recovery involves weighing the strength of the plaintiffs' case on the merits against the relief offered in settlement. 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:44 (4^th ed. 2002). In the instant case, the amended complaint alleges that defendants systematically provided inadequate medical care at Ely State Prison in violation of § 1983, the Eighth Amendment, and the Fourteenth Amendment. (Docket #15). A claim of inadequate medical treatment does not constitute cruel and unusual punishment unless the mistreatment rises to the level of "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The "deliberate indifference" standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must act with a "sufficiently culpable state of mind," which entails more than mere negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer v. Brennan, 511 U.S. at 837. A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Id.

Plaintiffs present a substantial case supporting class-wide injunctive relief, however, plaintiffs would face significant obstacles in proving their deliberate indifference claims at trial. Class counsel states that, given the complex evidence that would be required to establish defendants' liability, along with the inherent risks of litigation, the proposed settlement agreement achieves guaranteed relief for the class. (Docket #166-1, at p. 4). Class counsel also represents that, during the course of this litigation, defendants have begun to implement improvements to medical care offered at ESP, including hiring a full-time doctor. (Docket #166-1, at p. 5). The settlement agreement sets forth a detailed plan based on the standards of the National Commission on Correctional Heath Care (NCCHC), which is widely-accepted as a model for best-practices in correctional health care. The plan in the settlement agreement covers reforms such as improvements in the administration of medications, chronic care treatment, infirmary care, off-site treatment services, and the sick call system. (Docket #144-1, Settlement Agreement). The settlement agreement calls for the appointment of an independent monitor, Dr. Ronald Shansky, a medical expert in prison medicine, to assist in the development of necessary medical reforms and to monitor ESP's compliance with those reforms. (Docket #144-1, at pp. 17-20). The monitoring period will last for two years, unless extended pursuant to the terms of the settlement agreement. (Docket #144-1, at p. 20). During on-site inspections, Dr. Shansky will utilize a "monitoring tool," which was developed and submitted with the proposed settlement agreement, when assessing the prison's compliance. (Docket #144-1, at p. 19; Appendix to Settlement Agreement).

The terms of the proposed settlement agreement substantially achieve the goals of the lawsuit. If the case continued to be litigated, plaintiffs and defendants would undertake further discovery, involving expert witnesses, additional tours of ESP, and other aspects of costly litigation. The proposed settlement agreement gives the class member plaintiffs appropriate medical care now, without the delay and inherent risks involved in further litigation.

b. Risk, Expense, Complexity, and Likely Duration of Further Litigation

"In most situations, unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results." 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:50 (4^th ed. 2002). Class action challenges to conditions of confinement are necessarily complex. Pursuing further litigation and trial, the outcome of which is uncertain, risks losing the relief that is already guaranteed to plaintiffs in the proposed settlement agreement. Litigation, including discovery, would be complex and lengthy. As discussed above, to meet the deliberate indifference standard, plaintiffs face a heavy burden, as they would have to present extensive statistical, anecdotal, and expert evidence. The continuation of this litigation would involve substantial motion practice, discovery disputes, trial, and potential appeals. All of this involves risk, expense, complexity, and a delay until plaintiffs may ultimately gain the relief sought in this lawsuit.

c. Extent of Discovery Completed and Stage of the Proceedings

There is no precise measure for what constitutes sufficient evidence to enable a court to analyze the contested questions of fact. Moreover, "the court need not possess evidence to decide the merits of the issue, because the compromise is proposed in order to avoid further litigation." 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:45 (4^th ed. 2002). In this case, both parties conducted initial discovery. Plaintiffs' medical experts have conducted a three-day tour and review of ESP prior to the commencement of settlement negotiations. (Fettig Decl.). Prior to that, class counsel had conducted significant factual investigation for over a year prior to filing the original complaint. ( Id.). The absence of extensive formal discovery is immaterial where the parties have sufficient information to make an informed decision about settlement. See In re Mego Financial Corp. Litig., 213 F.3d 454, 459 (9^th Cir. 2000). In the instant case, sufficient discovery was conducted to allow counsel to make an informed decision regarding settlement.

d. Experience and Views of Counsel

The recommendation of experienced counsel in favor of settlement carries a "great deal of weight" in a court's determination of the reasonableness of a settlement. In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1174 (S.D. Cal. 2007). "The weight accorded to the recommendation of counsel is dependent on a variety of factors; namely, length of involvement in litigation, competence, experience in the particular type of litigation, and the amount of discovery completed." 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:47 (4^th ed. 2002). In the instant case, plaintiffs are represented by the National Prison Project of the ACLU Foundation (NPP), the ACLU of Nevada, and Holland Knight, LLP. The ACLU has extensive experience litigating class actions regarding prison conditions. See, e.g., Hadix v. Johnson, 65 F.3d 532, 534 (6^th Cir. 1995) (noting that the director of NPP is "a nationally recognized expert in federal court institutional litigation); Cody v. Hillard, 88 F. Supp. 2d 1049, 1057 (D. S.D. 2000) (noting that NPP attorneys "pursued the class' interests vigorously."); Ilick v. Miller, 68 F. Supp. 2d 1169, 1175 (D. Nev. 1999) (the NPP's lawyers "touted as being among the most experienced in the nation in this field"), abrogation on other grounds recognized by Laube v. Allen, 506 F. Supp. 2d 969, 988 (M.D. Ala. 2007); Diaz v. Romer, 801 F. Supp. 405, 410 (D. Colo. 1992) (class settlement approved where class counsel was assisted "by experts in the field of prison rights litigation working with the National Prison Project of the American Civil Liberties Union."). In addition, Holland Knight's Community Services Team, which also serves as plaintiffs' counsel in this action, has a distinguished record of providing legal representation to under-represented individuals and groups, and has been judicially recognized for such work. Concerned Parents of Jordan Park v. St. Petersburg Hous. Auth., 934 F. Supp. 406, 411 (M.D. Fla. 1996) ("the Community Services Team at Holland Knight brings a unique and powerful force to bear on issues affecting traditionally unrepresented and under-represented individuals. It has the financial ability and legal acumen to prosecute complex cases pro bono publico, in the public interest"). In class actions involving similar claims as the instant action, courts have approved settlement agreements, in part, because class counsel were experienced and competent civil rights attorneys. See Gaddis v. Cambell, 301 F. Supp. 2d 1310 (M.D. Ala. 2004); Laube v. Campbell, 333 F. Supp. 2d 1234, 1246 (M.D. Ala. 2004).

In this case, class counsel has extensive experience litigating prisoner civil rights claims, and Eighth Amendment claims in particular. (Docket #166-1, at p. 8). Counsel engaged in lengthy and vigorous arm's-length negotiations with defendants' attorneys in the Nevada Attorney General's Office. (Fettig and Martin Declarations). Class counsel has consistently consulted with experts throughout this litigation, and based on these consultations, has determined that the terms agreed upon in the settlement represent a fair, adequate, and reasonable settlement of plaintiffs' claims. (Docket #166-1, at p. 8). These factors weigh heavily in favor of approving the settlement agreement.

e. Equal Distribution of Relief

Courts scrutinize the amount offered in settlement to determine whether the plaintiffs received adequate compensation for releasing their claims. 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:46 (4^th ed. 2002). This inquiry often focuses on the terms of the agreement that "directly lend themselves to pursuit of self-interest by class counsel and certain members of the class — namely, attorneys' fees and the distribution of any relief, particularly monetary relief, among class members." Staton v. Beoing Co., 327 F.3d 938, 960 (9^th Cir. 2003). Absent the district court's failure to note "glaring inequity" in the other terms of a settlement, reversal of a court approval of a settlement is "rare . . . unless the fees and relief provisions clearly suggest the possibility that class interests gave way to self-interest." Id. at 961.

In this case, the plaintiff-class never sought monetary damages. The amended complaint seeks class-wide injunctive and declaratory relief. (Docket #15). The relief obtained from the settlement agreement — improvements in the provision of medical care at ESP — achieves the goals of the litigation. All class members are treated the same under the terms of the settlement agreement. The agreement does not impact individual damages cases that the class members have brought or will bring, and does not forfeit the class's right to seek redress in the future, if conditions proscribed by the settlement resume. The settlement negotiations were conducted in an adversarial, arm's-length manner, by plaintiffs' counsel and defendants' counsel. (Fettig and Martin Declarations).

f. Reaction of the Class Members to the Proposed Settlement

Approximately 1000 inmates reside at Ely State Prison, comprising the class member plaintiffs in this action. Only twelve inmate class members filed objections to the proposed settlement agreement. The number of objectors is a relevant, though not controlling, factor in the fairness analysis. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5^th Cir. 1977); 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:48 (4^th ed. 2002) ("Courts have taken the position that one indication of the fairness of a settlement is the lack or small number of objections."). The small number of objections is an indication that the settlement is fair, adequate, and reasonable.

The twelve inmates who filed written objections were: Michael Allen Richardson (Docket #149), Derek Constantino (Docket #150), David Owens Hooper (Docket #151), William Leonard (Docket #152), Jeremy A. Crozier (Docket #153), Kitrick Aaron Powell (Docket #154), James Ofeldt (Docket #155), Antonio Doyle (Docket #156), Frank Peck (Docket #157), Marritte Funches (Docket #158), David Ruffa (Docket #159), and Said Elmajzoub (Docket #160). The court must provide a "reasoned response" to the objections. Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1239 (9^th Cir. 1998) (citations omitted).

Inmates Richardson, Hooper, Leonard, Powell, and Funches object to the settlement due to their specific ongoing medical issues. (Docket #149, #151, #152, #154, and #158). The terms of the settlement address more systemic issues in the delivery of medical care at Ely State Prison and are not intended to address specific claims by each class member related to their specific medical care. Whereas approval of the settlement agreement will begin improvement in Ely's delivery of medical care, further litigation would only prolong the suffering of these inmates, with no guarantee of future relief.

Inmates Doyle and Elmajzoub object to the settlement based on their specific issues regarding the length of time to receive an x-ray or refills of prescriptions. (Docket #156 and #160). In the proposed settlement agreement, issues of timing for refills and appointments are addressed and will be evaluated by the Monitor during his inspections of Ely State Prison.

Inmates Ofeldt, Ruffa, and Elmajzoub object to the settlement based on claims involving mental health care, dental care, co-pays, and disability access at Ely State Prison. (Docket #155, #159, #160). These issues (mental health care, dental care, co-pays, and disability access) were never brought in this action; because they are outside the scope of this lawsuit, these issues are not an appropriate subject of settlement.

Inmates Crozier and Powell object to the settlement due to concerns about claim preclusion and their individual lawsuits. (Docket #153 and #154). The settlement specifically does not impact any individual damage actions brought by class members, nor does it impact actions for injunctive relief arising after the dismissal of the instant action. It does, however, preclude injunctive claims filed prior to the dismissal of this action, if those claims arise from the same factual predicate raised in the instant case. Class litigation often affects some existing litigation. The class is being provided relief for the claims made in the instant action, so that individuals with claims based on an identical factual predicate will have access to relief through the settlement agreement.

Inmates Richardson, Constantino, Leonard, Peck, and Funches object to the settlement, fearing that once the monitoring period ends, defendants will no longer provide adequate medical care for inmates at Ely State Prison. (Docket #149, #150, #152, #157, and #158). The settlement agreement contains a provision that relief can be extended after the end of the two-year monitoring period, if the Monitor determines that defendants have not achieved substantial compliance with the settlement agreement. (Settlement Agreement, Docket #144-1, at p. 23). The settlement agreement will achieve the goal that the plaintiff-class sought in bringing this action.

Inmates Crozier, Peck, and Funches object to the settlement because they want a declaration from the Court that defendants violated their rights and committed wrongs. (Docket #153, #157, and #158). While the amended complaint did seek declaratory relief, class counsel has weighed the risks involved in pursuing this litigation further. An adverse decision on the merits of plaintiffs' claims would result in not only denial of declaratory relief, but would deprive plaintiffs of the relief guaranteed by the settlement agreement, to wit, improvement in ESP's delivery of medical care.

The objections of the twelve class plaintiff members have been considered carefully by this Court. The objections of the twelve inmates do not outweigh the other factors, discussed above, which weigh heavily in favor of approving the settlement agreement as fair, adequate, and reasonable.

C. Negotiated Attorneys' Fees and Costs

1. Fees and Costs are Reasonable and Proper

In the proposed settlement agreement, both parties have agreed to a one-time lump sum payment of $325,000 to cover all of plaintiffs' attorneys' fees and costs incurred during the course of this litigation, and any fees and costs that plaintiffs' counsel will incur during the monitoring period of the settlement. (Settlement Agreement, at pp. 28-29). "In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement." Fed.R.Civ.P. 23(h). A claim for an award of attorneys' fees must be made by motion under Rule 54(d)(2). . . . Fed.R.Civ.P. 23(h)(1). Notice of the amount of fees must be given to class members in a reasonable manner. ( Id.). Notice of fees and costs is generally combined with the notice of proposed settlement. See Fed.R.Civ.P. 23(h)(1), Advisory Committee Notes, 2003 Amendments. In the instant action, the notice of proposed settlement advised the class members that the agreement authorizes the payment of attorneys' fees and costs from defendants in the amount of $325,000. (Docket #147, Court-Approved Notice to Class, at p. 7). As discussed above, the notice was provided to all class members in a reasonable manner.

2. Plaintiffs' Motion for Fees and Costs

The parties have agreed upon the lump sum payment of $325,000 in the settlement agreement and defendants voice no objection to the agreed-upon amount of fees and costs. Plaintiffs' counsel moves for the award of attorneys' fees and costs under Fed.R.Civ.P. 54(d)(2), as required by Fed.R.Civ.P. 23(h)(1). (Docket #166-1, at pp. 14-21). Local Rule 54-16 mandates that motions for attorneys' fees must include an itemization and description of work performed and costs incurred, and a declaration by the attorney responsible for billings authenticating that information and confirming that fees and costs are reasonable. Rule 54-16, at Part IA of District of Nevada's Local Rules of Court. Plaintiffs have submitted the declaration of lead attorney Amy Fettig, which authenticates the attached billing and cost statements for all attorneys that worked on plaintiffs' case. (Docket #166-3, Fettig Decl. and Billing/Cost Statements). Plaintiffs' attorney has satisfied the twelve enumerated factors in Local Rule 54-16(b)(3)(A-L), as applied to the instant case.

a. Results obtained and the amount involved

As discussed previously in this order, the results obtained for the class in the proposed settlement agreement substantially achieve the relief sought in this lawsuit and may exceed relief available at trial.

b. Time and labor required

The total number of attorney work hours expended thus are 2,501.54, at an hourly rate of $208.50. (Fettig Decl.). The hourly rate of $208.50 is the rate capped under the Prison Litigation Reform Act (PLRA). This rate is considerably less than the market value rate charged in both Washington, D.C. and Nevada, by lawyers of comparable skill and experience for similarly complex litigation. (Fettig Decl.). Based on this significantly lower hourly rate, the total amount of attorney fees are $386,013.69. The total costs expended are $83,734.89. Total fees and costs expended to date are $469,748.58. (Fettig Decl.). Plaintiffs' counsel have also waived further claims for fees and costs accrued during the monitoring period of the settlement agreement, estimated to be 960 hours of attorney work and a minimum of $10,000 in costs, making total estimated future attorneys' fees and costs $210,160. (Fettig Decl.). Therefore, the attorneys' fees and costs agreed to in the settlement of $325,000 represents more than a 50% reduction in fees and costs for work already performed and to be performed during the monitoring period. (Fettig Decl.). The attorneys' fees and costs are more than fair and reasonable, based on the past, present, and future work that plaintiffs' counsel has and will expend on this case.

Under the PLRA, "[n]o award of attorneys' fees . . . shall be based upon an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, for payment of court-appointed counsel [under the Criminal Justice Act (CJA)]." 42 U.S.C. § 1997e(d)(3). The Judicial Conference has authorized a CJA rate of $139.00 per hour, effective January 1, 2010. (Memo, J. Gallant, Administrative Office of the Courts, attached as Exhibit D to Fettig Decl.). Thus, as of January 1, 2010, the PLRA rate is $208.50. See Webb v. Ada Cnty., 285 F.3d 829, 839 (9^th Cir. 2002), cert. denied, 537 U.S. 948 (2002) (hourly rate established under § 3006A is the amount authorized by the Judicial Conference, not the amount actually appropriated by Congress).

c. Novelty and difficulty of questions involved

The Supreme Court has recognized that, for purposes of determining fees under 42 U.S.C. § 1988, civil rights cases are presumptively deemed to be as complex as antitrust cases. Blum v. Stenson, 465 U.S. 886, 893 (1984). Plaintiffs' counsel are familiar with the intricacies of § 1983, constitutional law, and the limitations imposed on prisoner litigants by the PLRA.

d. Skill requisite to perform legal services

Considerable skill was needed to perform the legal services involved in certification of the class action, motion practice, discovery, developing protocol for expert tours of ESP, and months of negotiation required to formulate the settlement agreement.

e. Preclusion of other employment

Counsel's decision to litigate this case precluded them from working on other civil rights cases. (Fettig Decl.).

f. Customary fee

As discussed above, the attorneys' fees agreed upon in the instant case represents a 50% reduction of actual fees and costs that plaintiffs' counsel has accrued and will accrue over the course of this litigation and monitoring period of the settlement.

g. Whether fee is fixed or contingent

Counsel's fees were purely contingent in this case. (Docket #166-1). Counsel states that the ACLU never accepts any fees from its clients other than attorneys' fees awarded or settled under 42 U.S.C. § 1988. (Docket #166-1, at p. 19). Plaintiffs' counsel has advanced all expenses incurred in this litigation, and will not receive any reimbursement and/or compensation except for the fees and costs contemplated in the settlement agreement. (Docket #166-1; Fettig Decl.).

h. Time limitation imposed by client or circumstances

This case imposed a significant time commitment on plaintiffs' counsel after class certification, during discovery, and up until the finalization of the settlement, following six months of negotiation. (Fettig Decl.).

i. Experience, reputation, and ability of the attorneys

Plaintiffs' attorneys are well-known, capable, and experienced litigators, as discussed earlier in this order.

j. Undesirability of the case

A general negative stigma is associated with corrections litigation. In the instant action, plaintiffs' case would be considered undesirable by the civil rights bar. The case was fact-intensive, time-consuming, and expensive. The cost of retaining medical experts was significant. Several provisions of the Prison Litigation Reform Act (PLRA), including limits on attorney fees, make litigation difficult for plaintiffs' attorneys representing prisoners. (Fettig Decl.).

k. Nature and length of professional relationship with clients

Counsels' professional relationship with plaintiffs dates back to 2007, when the ACLU began investigating medical conditions at ESP. (Fettig Decl.).

l. Awards in similar cases

The attorneys' fees and costs in this case are reasonable in light of awards in similar cases. See Graves v. Arpaio, 633 F. Supp. 2d 834, 853 (D. Az. 2009) (awarding attorneys' fees of $1,239,491.63 and non-taxable costs of $123,221.77, in jail conditions class action case); Lopez v. San Francisco Unified Sch. Dist., 385 F. Supp. 2d 981, 1004 (N.D. Cal. 2005) (awarding more than $5 million in attorneys' fees and $900,000 in costs for "hard-fought" four-year civil rights litigation that ended in settlement before trial).

The negotiated attorneys' fees and costs in the lump sum amount of $325,000, as set forth in the settlement agreement, being reasonable, fair, and proper, are approved by this Court. See Fed.R.Civ.P. 23(h); Fed.R.Civ.P. 54(d)(2); Local Rule 54-16.

D. Dismissal and Entry of Judgment

Upon approval of a class action settlement, the court enters judgment of dismissal. See Fed.R.Civ.P. 23(e) and Fed.R.Civ.P. 23(c)(3); 4 Alba Conte Herbert B. Newberg, Newberg on Class Actions § 11:59 (4^th ed. 2002). The judgment must identify the class members: "Whether or not favorable to the class, the judgment in a class action must: (A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members." Fed.R.Civ.P. 23(c)(3)(A). The instant class action was certified under Rule 23(b)(2), as it seeks only declaratory and injunctive relief. (Order Certifying Class, Docket #40, at pp. 9-10). The judgment must therefore include and describe the class members of this action, specifically: "The class is defined as all prisoners who are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in Ely, Nevada." (Docket #40, at p. 12). The purpose of Rule 23(c)(3)'s requirement that the judgment must include and describe the class is to prevent "one-way" intervention by defining the class of people to be affected by the judgment and providing that the judgment will be binding on the members of the class. Advisory Committee Notes, 1966 Amendments to Fed.R.Civ.P. 23(c)(3).

III. Conclusion

IT IS THEREFORE ORDERED that the proposed settlement agreement (Docket #144-1) is APPROVED as fair, reasonable, and adequate, pursuant to Fed.R.Civ.P. 23(e).

IT IS FURTHER ORDERED that the negotiated attorneys' fees and costs in the lump sum amount of $325,000 are APPROVED. Plaintiffs' motion for attorneys' fees and costs is GRANTED, pursuant to Fed.R.Civ.P. 23(h), Fed.R.Civ.P. 54(d)(2), and Local Rule 54-16.

IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT in this action as SETTLED. The Clerk's judgment SHALL INCLUDE the following description of the plaintiff-class members: "The class is defined as all prisoners who are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in Ely, Nevada."

Dated this 27th day of October, 2010.

erefore need not be dismissed pursuant to § 3-2A-04(b) just because the claimant or plaintiffs certificate of qualified expert does not contain opinions expressed explicitly to a reasonable degree of medical probability.

III. Waiver of Dr. Berger's Challenge to the Certificate's Sufficiency

We have concluded that Petitioners' certificate of qualified expert is insufficient, but Petitioners argue that this should not lead to the dismissal of their claim. Petitioners contend that Dr. Berger cannot challenge the sufficiency of the certificate because, in their view, Dr. Berger waived this challenge when he unilaterally waived arbitration in the HCADRO and failed to specifically deny, in his answer to the complaint or by pre-trial motion, that Petitioners had satisfied the requirement. In response, Dr. Berger argues that, as the Court of Special Appeals held in Kearney I, the certificate requirement is a condition precedent that cannot be waived. Dr. Berger also argues that he did not waive his challenge to the certificate's sufficiency because he included a general denial in his answer to the complaint. We conclude that Dr. Berger did not waive his challenge to the certificate.

As we have discussed in this opinion, the HCMCA sets forth specific procedures that must be followed in regard to any case to which the HCMCA applies. One explicit requirement of the HCMCA is that the claimant or plaintiff must file a certificate of qualified expert before a party may unilaterally waive HCADRO arbitration. Specifically, § 3-2A-06B sets forth the procedures by which either a claimant or defendant may unilaterally waive HCADRO arbitration. See Goodwich v. Nolan, 343 Md. 130, 149 n. 13, 680 A.2d 1040, 1049 n. 13 (1996) (noting that waiver "may be accomplished unilaterally, by either the claimant(s) or defendant(s), after the claimant has filed the certificate of qualified expert required by § 3-2A-04(b)"). The unilateral waiver procedures, contained within a section of the HCMCA titled "Waiver of arbitration after filing certificate of qualified expert," state that "any claimant may waive arbitration at any time after filing the certificate of qualified expert required by § 3-2A-04(b) . . . ." § 3-2A-06B(b)(1) (emphasis added). Similarly, "[a]ny defendant may waive arbitration at any time after the claimant has filed the certificate of qualified expert required by § 3-2A-04(b) . . . ." § 3-2A-06B(c)(1) (emphasis added). Section 3-2A-06B(a) further demonstrates that these requirements are mandatory, stating that the "provisions of [§ 3-2A-06B] shall govern all further proceedings on any claim" when a party unilaterally waives arbitration. Finally, the HCMCA specifically establishes that a party may raise "the defense of failure to comply with the procedures required under [the HCMCA]." § 3-2A-10. As these provisions show, the certificate requirement applies even when a party unilaterally waives arbitration, and failure to satisfy this procedural requirement is a valid defense.

In a case of unilateral waiver, the certificate of qualified expert can be filed with either the HCADRO or, if filed after a party has elected to waive arbitration, "in the appropriate circuit court or United States District Court." § 3-2A-06B(b)(3), (c)(3).

The HCMCA's procedural requirements do not become irrelevant when a case is no longer in the HCADRO. Section 3-2A-02(a)(2) states that "[a]n action or suit [to which the HCMCA applies] may not be brought or pursued in any court of this State except in accordance with [the HCMCA]." Accordingly, we have repeatedly held that adherence to the HCMCA's procedures is necessary to maintain a claim that is subject to the HCMCA. See, e.g., Carroll, 400 Md. at 181, 929 A.2d at 28 ("[I]f a proper [c]ertificate has not been filed, the condition precedent to maintain the action has not been met and dismissal is required by the [s]tatute once the allotted time period [for filing the certificate] has elapsed."); McCready Memorial Hosp. v. Hauser, 330 Md. 497, 512, 624 A.2d 1249, 1257 (1993) (explaining that the HCMCA "mandates that claimants arbitrate their claims before the [HCADRO] as a condition precedent to maintaining a suit in a circuit court" and that "filing . . . an expert's certificate is an indispensable step in the [HCADRO] arbitration process"); Su v. Weaver, 313 Md. 370, 377, 545 A.2d 692, 695 (1988) (explaining that the HCMCA requires "a malpractice claim to be submitted to a mandatory arbitration proceeding as a condition precedent to maintaining such an action in the circuit court."); Cherry v. Brothers, 306 Md. 84, 88-89, 507 A.2d 613, 615 (1986) ("[C]ompliance with the procedures to invoke judicial review as set forth in § 3-2A-06 is a condition precedent to the maintenance of a medical malpractice court action."); Tranen v. Aziz, 304 Md. 605, 612, 500 A.2d 636, 639 (1985) ("[T]he statutory context of these [HCMCA] directives plainly shows that [c]ompliance with them is mandatory and that noncompliance mandates dismissal."); Bailey v. Woel, 302 Md. 38, 45, 485 A.2d 265, 268 (1984) (holding that "a plaintiff who presents no evidence before a medical malpractice arbitration panel has not satisfied the condition precedent of submitting his claim to arbitration prior to instituting court action"). We have further held that the parties to a suit cannot agree to ignore the HCMCA's requirements, holding in Oxtoby v. McGowan that "[compliance with the [HCMCA's] precondition to court suit may not be avoided by express agreement of the parties or by mere oversight, at least prior to final judgment and final determination of all direct appeals." 294 Md. 83, 92, 447 A.2d 860, 865 (1982). Simply put, a claim to which the HCMCA applies cannot be brought or pursued in any court unless the parties comply with the HCMCA's procedural requirements.

Petitioners contend that the HCMCA "specifies what may be reviewed by a [c]ircuit [c]ourt, and it does not include the review of the sufficiency of either a certificate of qualified expert or the attesting expert report." Petitioners ignore, however, two statutory provisions identified above: § 3-2A-02(a)(2), which states that "[a]n action or suit [to which the HCMCA applies] may not be brought or pursued in any court of this State except in accordance with [the HCMCA]," and § 3-2A-10, which specifically recognizes "the defense of failure to comply with the procedures required under [the HCMCA]." As we explain in this opinion, one of the HCMCA's procedural requirements is that a certificate of qualified expert must be filed before arbitration is unilaterally waived. § 3-2A-06B(b)(1). (c)(1).

Our decision in Carroll shows that a certificate of qualified expert must be filed in order to maintain a court action, even after a party unilaterally waives HCADRO arbitration. In Carroll, like the present case, arbitration was unilaterally waived and, in the circuit court, the defendant requested dismissal of the case because the certificate of qualified expert filed in the case was insufficient. Carroll, 400 Md. at 175-76, 929 A.2d at 24. We explained that we had not previously considered whether filing a certificate of qualified expert is a condition precedent to maintaining court action. Carroll, 400 Md. at 181, 929 A.2d at 27. To answer that question, we looked to our decision in McCready, in which we stated that "[a] claimant's filing of an expert's certificate is an indispensable step in the [HCADRO] arbitration process." McCready, 330 Md. at 512, 624 A.2d at 1257. We reasoned in Carroll "that the filing of a proper [certificate operates as a condition precedent to filing a claim in Circuit Court because arbitration is a condition precedent to filing a claim in a Circuit Court and because . . . it must occur or the condition precedent is not satisfied." 400 Md. at 181, 929 A.2d at 28. We accordingly held that "if a proper [certificate has not been filed, the condition precedent to maintain the action has not been met and dismissal is required by the [s]tatute once the allotted time period has elapsed." Carroll, 400 Md. at 181, 929 A.2d at 28; see also Robinson v. Pleet, 76 Md.App. 173, 182, 544 A.2d 1, 5 (1988) (holding that, pursuant to § 3-2A-04(b)(1), a "claim `shall be dismissed' if the certificate is not filed timely"). Our decision in Carroll therefore established that a case must be dismissed if the plaintiff has not filed a certificate of qualified expert, even if one of the parties has unilaterally waived HCADRO arbitration.

Our conclusion in Carroll is consistent with the Court of Special Appeals' decision in Marousek v. Sapra, 87 Md.App. 205, 589 A.2d 529 (1991). In Marousek, Judge Bell, now Chief Judge of this Court, writing for the Court of Special Appeals, concluded that a waiver of arbitration rendered moot a challenge to the certificate of qualified expert. 87 Md.App. at 218-20, 589 A.2d at 535-36. Marousek, however, concerned the mutual waiver provision of the HCMCA, through which both parties in an HCADRO case can agree to waive arbitration. 87 Md.App. at 217, 589 A.2d at 534. Unlike the unilateral waiver provision, which had not been enacted when Marousek was decided, the mutual waiver provision does not require, as a precondition, the filing of a certificate of qualified expert. Marousek, 87 Md.App. at 219-20, 589 A.2d at 535 § 3-2A-06A (providing for mutual waiver); see also Azarian v. Witte, 140 Md.App. 70, 84, 779 A.2d 1043, 1051 (2001), aff'd, 369 Md. 518, 801 A.2d 160 (2002) (concluding that Marousek did not apply in a case of unilateral waiver). The difference in these two waiver provisions makes Marousek inapplicable in cases of unilateral waiver.

Our adherence to the HCMCA's certificate requirement is not mere formalism. The requirement that the claimant or plaintiff file a certificate of qualified expert serves an important purpose, even in cases of unilateral waiver. The Legislature established the HCADRO arbitration process "to reduce the number of medical malpractice court suits by screening out frivolous claims at the arbitration level." Newell v. Richards, 323 Md. 717, 732, 594 A.2d 1152, 1159 (1991). There is no doubt that the certificate of qualified expert is an indispensable part of this process because it helps weed out non-meritorious claims. Carroll, 400 Md. at 196, 929 A.2d at 37; McCready, 330 Md. at 512, 624 A.2d at 1257. The certificate serves this purpose not only by helping the litigants, the HCADRO, and the trial court determine whether a claimant or plaintiffs claim has merit, but also by requiring the claimant or plaintiff to support the claim with an expert's opinion. See Terry L. Trimble, The Maryland Survey: 1994-1995: Recent Developments: The Maryland General Assembly: Torts, 55 Md. L. Rev. 893, 920 (1996) (explaining that "the single best deterrent [to filing a medical malpractice suit], the certificate of [qualified expert] requirement, remains in effect, even for those cases that waive [arbitration]"). Requiring that the plaintiff file a certificate, even in cases of unilateral waiver, furthers the Legislature's intent.

The present case demonstrates the practical effect of being required to obtain a certificate of qualified expert. Petitioners' original counsel stated in his motion to withdraw that he "consider[ed] it improper to pursue [Petitioners'] claims in reliance on the opinion of" the expert who attested to Petitioners' certificate of qualified expert. Counsel explained that he had reached this conclusion because he was "concerned that [the expert's] representation, and [the expert's] certification pursuant to the [HCMCA,] were false." He accordingly stated that "being unable to engage any other reliable expert who shares [the expert's] opinion, present counsel is unable to further assist [Petitioners]." We, of course, pass no judgment on the validity of the expert's opinion.

The question before us now is whether Dr. Berger waived the certificate requirement when he unilaterally waived arbitration of Petitioners' claim. In Carroll, we stated in a footnote that "[a] condition precedent cannot be waived under the common law and a failure to satisfy it can be raised at any time because the action itself is fatally flawed if the condition is not satisfied." 400 Md. at 182 n. 12, 929 A.2d at 28 n. 12 (quoting Georgia-Pacific v. Benjamin, 394 Md. 59, 84, 904 A.2d 511, 526 (2006)); see also University System v. Mooney, 407 Md. 390, 412, 966 A.2d 418, 431 (2009) (explaining that an action is "fatally flawed" if a condition precedent is not met (quoting Rios v. Montgomery County, 386 Md. 104, 127-28, 872 A.2d 1, 14 (2005))). In Kearney I, the Court of Special Appeals focused on this statement, holding "that the filing of a certificate operates as a condition precedent, which cannot be waived, and therefore, [Dr. Berger] did not waive any objection by failing to generally or specifically deny the specific averment [that the parties had satisfied the certificate requirement]." 182 Md.App. at 195, 957 A.2d at 687.

Petitioners argue that the Court of Special Appeals came to the wrong conclusion in Kearney v. Berger, 182 Md.App. 186, 957 A.2d 682 (2008) ( Kearney I.) In particular, Petitioners argue that the intermediate appellate court's later decision in Rice v. UMMS, 186 Md. App. 551, 975 A.2d 193, cert. granted, 411 Md. 355, 983 A.2d 431 (2009), demonstrates that the certificate requirement can sometimes be waived. Because we conclude that Dr. Berger did not waive the certificate requirement, we need not decide whether he could have waived that requirement under a different set of circumstances. Furthermore, Rice inappropriately relied on Marousek, which is inapplicable to cases of unilateral waiver. See supra note 9; Rice, 186 Md.App. at 568, 975 A.2d at 203 (citing Marousek for the proposition that "[e]ven a condition precedent can be deemed waived under some circumstances").

To decide the present case, we need not determine whether or not a party can ever waive the certificate requirement. Instead, we need only determine whether the actions or inaction of Dr. Berger and his attorney constituted a waiver of the requirement. We have defined "waiver" as "the intentional relinquishment of a known right." Taylor v. Mandel, 402 Md. 109, 135, 935 A.2d 671, 686 (2007). Petitioners have presented two ways in which they contend that Dr. Berger relinquished his right to object to the certificate's sufficiency. First, they argue that Dr. Berger did so when he waived arbitration. To this end, Petitioners ask in their brief, "If Dr. Berger did not waive these objections [to the certificate's sufficiency], what did he waive?" The answer, which should be clear from our discussion above, is that Dr. Berger waived "arbitration of a claim." This is what § 3-2A-06B explicitly authorizes. The effect of this waiver was that the claims would not be heard in the HCADRO and would instead be heard in the Circuit Court. This waiver of arbitration did not, however, waive Dr. Berger's challenge to the certificate's sufficiency; to the contrary, § 3-2A-06B requires that a certificate of qualified expert be filed, so the waiver of arbitration did not affect that requirement. Dr. Berger's waiver of arbitration had nothing to do with whether Petitioners' certificate was sufficient, and, accordingly, this waiver did not constitute a waiver of Dr. Berger's right to challenge the certificate's sufficiency.

To be certain, the provisions of the HCMCA do not expressly provide for waiver of the certificate requirement, except to the extent that the mutual waiver provisions do not state that a certificate is necessary in cases of mutual waiver. See supra note 9.

Petitioners' second argument is that Dr. Berger waived his challenge to the certificate's sufficiency when he failed to specifically deny Petitioners' averment, made in their complaint, that the parties had "timely filed with the [HCADRO] certificates of qualified experts as required by . . . § 3-2A-04(b)." The Maryland Rules do not support this argument. Rule 2-323(d) states that "[w]hen the action in any count is for breach of contract, debt, or tort and the claim for relief is for money only, a party may answer that count by a general denial of liability." Petitioners' claims are actions for tort and their claims for relief are for money only. Pursuant to Rule 2-323(d), Dr. Berger was only required to answer Petitioners' claims by a general denial of liability, which he did.

Dr. Berger argues that his challenge to the certificate "was permissive and could be raised at any time." For this argument, he cites Maryland Rule 2-322(b), which permits a party to raise a lack of subject matter jurisdiction "in the answer, or in any other appropriate manner after [an] answer is filed." We have, however, explicitly rejected the notion that failure to satisfy the HCMCA procedures divests a trial court of subject matter jurisdiction. Oxtoby v. McGowan, 294 Md. 83, 91, 447 A.2d 860, 864-65 (1982) ("The Act . . . does not take away the subject matter jurisdiction of a circuit court to hear and render judgments in cases involving claims which fall within the Act.").

The HCMCA and our case law establish that, in cases where a party unilaterally waives HCADRO arbitration of a claim, a certificate of qualified expert must be filed. We conclude that Dr. Berger did not waive his challenge to whether Petitioners satisfied that requirement when he unilaterally waived arbitration. We also conclude that the general denial of liability in Dr. Berger's answer was sufficient to deny that Petitioners had satisfied the certificate requirement. Instead of waiving his challenge to the certificate's sufficiency, Dr. Berger properly raised "the defense of failure to comply with the procedures required under [the HCMCA]," as § 3-2A-10 explicitly permits.

IV. Good Cause

Finally, Petitioners argue that the trial judge committed an abuse of discretion when she concluded that there was no good cause to extend the deadline for filing the certificate of qualified expert. Petitioners assert several reasons why good cause exists; Dr. Berger argues that those reasons are not sufficient. We agree with Dr. Berger and conclude that there was no good cause to extend the deadline.

Section 3-2A-04(b)(1)(i) 1 requires dismissal of a claim if the claimants or plaintiffs do not file a certificate of qualified expert "within 90 days from the date of the [filing of the] complaint." There is, however, some flexibility in this deadline. The panel chairman or court "shall" extend the deadline by "no more than" an additional 90 days if "[t]he limitations period applicable to the claim or action has expired" and "[t]he failure to file the certificate was neither willful nor the result of gross negligence." § 3-2A-04(b)(1)(ii). We have interpreted this language as requiring a 90-day extension, subject to a motion to dismiss from the defendant, even if there is no formal request from the claimant or plaintiff. McCready, 330 Md. at 510-11, 624 A.2d at 1255-56. The HCMCA also mandates that a further extension of the filing deadline "shall be granted for good cause shown." § 3-2A-04(b)(5); see also § 3-2A-05(j) (granting the Director of the HCADRO or panel chairman authority to, "for good cause shown, . . . lengthen or shorten the time limitations prescribed in . . . § 3-2A-04"). We have explained that the HCMCA's good cause provisions "require the claimant to establish good cause and do not permit an extension without such a showing, but, . . . [the provisions] `are silent as to the timing of a request, and they do not expressly limit the length of any extension.'" Navarro-Monzo v. Washington Adventist, 380 Md. 195, 203, 844 A.2d 406, 410-11 (2004) (quoting McCready, 330 Md. at 508, 624 A.2d at 1255). We have described these deadline extension provisions as "escape valves" for "the harshness of the penalty . . . for failing to file a certificate within the initial 90-day period." Navarro-Monzo, 380 Md. at 204, 844 A.2d at 412.

The good cause determination can be made by the circuit court, as well as the Director of the HCADRO or the chairman of the arbitration panel. In Navarro-Monzo v. Washington Adventist, we stated that a good cause extension " shall be granted by the Director or panel chairman for good cause shown" pursuant to § 3-2A-04(b)(5). 380 Md. 195, 205, 844 A.2d 406, 412 (2004). In Navarro-Monzo, we were reviewing a good cause determination made in the HCADRO, so our focus was limited to that entity. 380 Md. at 203, 844 A.2d at 412. As the intermediate appellate court has noted, however, § 3-2A-04(b)(5) "does not expressly limit such authority [to grant or deny a good cause extension] to the Director or panel chair." Barber v. Catholic Health, 174 Md.App. 314, 358, 921 A.2d 811, 837 (2007), vacated on other grounds, 400 Md. 396, 929 A.2d 155 (2007).

The issue before us is whether the trial judge abused her discretion when she concluded that Petitioners had not shown good cause to extend the deadline for filing a certificate of qualified expert. We recently described the abuse of discretion standard:

There is an abuse of discretion where no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles. An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic.

Questions within the discretion of the trial court are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred. In sum, to be reversed the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.

Falik v. Hornage, 413 Md. 163, 182-83, 991 A.2d 1234, 1246 (2010) (quoting Wilson v. Crane, 385 Md. 185, 198-99, 867 A.2d 1077, 1084 (2005) (internal quotations omitted)).

Counsel for Dr. Berger asserted during oral arguments before this Court that Petitioners cannot receive a good cause extension because they requested the extension more than 180 days after Petitioners filed their claims in the HCADRO. That issue is not, however, properly before this Court. The Court of Special Appeals resolved that issue when it decided it against Dr. Berger in Kearney I, 182 Md.App. at 195-200, 957 A.2d at 685-87 ("[W]e hold that the motion for extension for good cause was not untimely and that appellants were entitled to present their argument for good cause to the circuit court"), and we denied Dr. Berger's petition for certiorari on that issue, Berger v. Kearney, 406 Md. 580, 961 A.2d 553 (2008). In addition, neither party presented arguments on that issue in their briefs. Accordingly, we assume that Petitioners would have been entitled to an extension of the certificate deadline if they had established good cause for such an extension.

We have discussed the good cause determination in a context similar to the HCMCA. In Rios, we explained that "circumstances that have been found to constitute good cause fit into several broad categories: excusable neglect or mistake (generally determined in reference to a reasonably prudent person standard), serious physical or mental injury and/or location out-of-state, the inability to retain counsel in cases involving complex litigation, . . . ignorance of the statutory [] requirement," and "where representations made by [] government representatives are misleading." 386 Md. at 141-42, 872 A.2d at 22-23 (discussing good cause for filing a claim for unliquidated damages against a local government beyond the 180-day notice deadline in § 5-304) (quoting Heron v. Strader, 361 Md. 258, 272, 761 A.2d 56, 63-64 (2000) (citations omitted)). We have also explained, in regard to § 5-304(d), that justification for a good cause extension may exist when the complaining party exercised "that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances." Heron, 361 Md. at 271, 761 A.2d at 63 (quoting Westfarm Assoc., v. Washington Suburban Sanitary Comm'n, 66 F.3d 669, 676-77 (4th Cir. 1995)).

Section 5-304(d), which was at issue in Rios v. Montgomery County, 386 Md. 104, 872 A.2d 1 (2005), is part of a different statutory scheme than § 3-2A-04(b)(5). Nonetheless, the circumstances described in Rios are equally applicable here because both statutes concern the same issue: whether there is good cause to extend a deadline for a required filing. Section 5-304(d) was codified as § 5-304(c) at the time we decided Rios.

Petitioners' first argument focuses on whether a government representative, i.e., the Director of the HCADRO, made a misleading representation. Petitioners assert that they relied on the representation of the Director when he accepted their certificate of qualified expert and that the Director "either ignored his responsibilities or believed the certificate was sufficient under the statute." The problem with this argument is that there is no evidence that the Director made any such representation when he accepted the certificate, nor did he have any responsibility to do so. Nothing in the HCMCA instructs the Director to evaluate the certificate, and Petitioners have presented nothing to suggest that the Director actually represented to them that the certificate was sufficient. Petitioners could not have reasonably relied on a representation that the Director did not make.

Petitioners' next argument is similar to the first and suffers from a similar flaw. Petitioners argue that the HCADRO Director's Order of Transfer, transferring the case from the HCADRO to the Circuit Court, constituted a ruling upon which Petitioners relied. The Court of Special Appeals correctly rejected a similar argument in Azarian v. Witte, 140 Md.App. 70, 779 A.2d 1043 (2001), aff'd, 369 Md. 518, 801 A.2d 160 (2002). The court explained, and we agree, that "the transfer of [the] case by [the HCADRO] to the circuit court is simply a ministerial function." Azarian, 140 Md.App. at 83, 779 A.2d at 1050. Accordingly, the court explained that an Order of Transfer

does not imply that the [HCADRO] has made any determination as to the merits of that certificate [of qualified expert]. Indeed, upon the proper filing of waiver of arbitration, all further proceedings before the [HCADRO], including discovery, cease. . . . Just as the filing of a jury request divests the district court of jurisdiction to consider the jury prayer or to conduct any further proceedings, the filing of a waiver of arbitration divests the [HCADRO] of any right to consider the validity of a certificate of [qualified expert] or to conduct any further proceedings, except to transfer the claim at issue to the circuit court.

Azarian, 140 Md.App. at 83, 779 A.2d at 1050.

We agree with the conclusion in Azarian that the HCADRO proceedings cease with the proper filing of a waiver of arbitration and that the waiver divests the HCADRO of any right to consider the validity of the certificate of qualified expert. Petitioners could not have relied on the Order of Transfer as a ruling that the certificate was sufficient when the HCADRO could not have properly made such a ruling. Furthermore, the HCMCA specifically prohibits the Director of the HCADRO from ruling on dispositive matters. § 3-2A-05(a)(2) (allowing the Director to "rule on all issues of law arising prior to hearing," but only if no panel chairman has been appointed or the panel chairman is temporarily unable to serve and the issues "are not dispositive of the case"). As this case demonstrates, the sufficiency of Petitioners' certificate was a dispositive matter because it could have resulted in dismissal of the case. Accordingly, the Director would have been ruling on a dispositive matter had the Order been a determination of the certificate's sufficiency. Petitioners could not have relied on a ruling that the Director was statutorily prohibited from making.

Petitioners argue that "[r]eliance on the [HCADRO] Director's ruling has been held to establish good cause in previous cases," citing Furst v. Isom, 85 Md.App. 407, 584 A.2d 108, cert. denied, 323 Md. 1, 590 A.2d 158 (1991). This is a misinterpretation of Furst. In that case, the panel chairman, not the Director, made the ruling upon which there was reliance. Furst, 85 Md.App. at 420, 584 A.2d at 114. The panel chairman has statutory authority to make rulings on issues of law, § 3-2A-05(a)(1), and in Furst there was no election of waiver.

Petitioners also argue that they "acted as a reasonably prudent person would in filing the claim and a certificate." The brunt of this argument is that Walzer changed the general understanding of what was required in a certificate of qualified expert and that, prior to Walzer, the "parties reasonably believed . . . that the certificates were conforming." As Walzer explains, however, the plain language of § 3-2A-04(b)(3) states that a report of the attesting expert "shall" be "attached" to the certificate of qualified expert. Walzer, 395 Md. at 579-80, 911 A.2d at 436 (explaining that the statute makes "clear that the General Assembly intended for the attesting expert report to be a part of the certificate of qualified expert"). Our decision in Walzer did not change the statute, but only directed parties to do what the statute already required. See Weinberg v. Safe Dep. Trust Co., 198 Md. 539, 549, 85 A.2d 50, 54 (1951) (explaining that the Legislature "can always change the statute," but that "we can only interpret the law according to its plain intent and meaning"). The statute included this clear requirement when Petitioners filed their claim, and, accordingly, we cannot conclude that Petitioners were "reasonably prudent" when they ignored the requirement and attached no such report.

Petitioners argue in their brief submitted to this Court that "though the statute was known to [Petitioners] at the time of filing the certificate, [Petitioners] were ignorant as to the specific requirements demanded by it — that an expert report must be attached." Petitioners therefore concede that they were aware of the statute when they filed their certificate, but they also ask us to excuse them for failing to make an attempt at satisfying the expert report requirement. A failure to follow a clear statutory requirement does not support a finding of good cause for additional time to satisfy that same requirement.

Petitioners further argue that their original counsel in the present case "was not well-established and not privy to the intricacies of medical negligence law in Maryland" and that this previous counsel "withdrew from this case in the midst of discovery." Petitioners contend that this situation caused them difficulty in retaining counsel. See Rios, 386 Md. at 141, 872 A.2d at 22-23 (identifying "the inability to retain counsel" as a circumstance where good cause might exist). We have never said, however, that mere difficulty in retaining counsel favors a finding of good cause. Furthermore, the record in this case shows that Petitioners actually had counsel throughout this case. Petitioners' original counsel filed the complaint and his appearance in this case on June 11, 2005. He also filed a motion on Petitioners' behalf on January 5, 2006, asking for a revised scheduling order. Subsequently, he filed a motion to withdraw from the case on February 22, 2006, but within approximately two weeks Petitioners' present counsel had filed a motion for leave to enter his appearance. On March 30, 2006, the trial court granted the original counsel's motion to withdraw and, in the same order, entered the appearance of Petitioners' present counsel. We cannot see, based on this record, any time during this case when Petitioners actually had difficulty retaining counsel.

Petitioners have not pointed us to anything in the record suggesting that they were effectively without counsel. In particular, they have not suggested any reason why their alleged difficulty retaining counsel, or any acts by their original counsel, prevented them from filing a sufficient certificate of qualified expert. Cf. Ransom v. Leopold, 183 Md. App. 570, 586-87, 962 A.2d 1025, 1034-35 (2008) (rejecting the plaintiffs' claim that they were effectively without counsel when they did "not explain, and did not provide any affidavits below addressing, what accounted for the mistake" by counsel).

Petitioners' final argument is that the trial court failed "to promote justice in a logical and common sense manner" when it ruled that no good cause existed. They assert that "a denial of good cause is a denial of common sense notions of fairness and justice" and that "[t]he trial court admittedly eschewed its ability to promote fairness and justice through common sense application of the law by finding that no good cause existed." Petitioners do not provide any case law directly supporting this argument, but instead cite our cases stating that a trial court abuses its discretion when its decision is "violative of fact and logic" or "against the logic and effect of facts and inferences before the court." See, e.g., King v. State, 407 Md. 682, 697, 967 A.2d 790, 798-99 (2009) (quoting North v. North, 102 Md.App. 1, 13-14, 648 A.2d 1025, 1031 (1994)). We do not, however, see how the trial judge violated either fact or logic. The trial judge considered Petitioners' arguments for why there was good cause to extend the deadline and concluded that those arguments were insufficient. Just as we have in this opinion, the trial court reached this conclusion by rejecting the notion that Petitioners should be given a deadline extension when they ignored clear statutory requirements. This decision was not an abuse of discretion, but a decision to follow the law.

Petitioners seize on this statement by the trial judge, lifted out of context:

So I think that the clear lesson from the opinion of the Court of Special Appeals [in Kearney I] is . . . stop using common sense, look at the statute, what does it say, what does it not say.

The trial judge seems to be saying what we have said many times: if the statute is clear, a court should not substitute its own judgment for the plain meaning of the statute. See, e.g., Ricketts v. Ricketts, 393 Md. 479, 497, 903 A.2d 857, 867-68 (2006) ("Where . . . a statute is clear and unambiguous, logic will not substitute for, or trump, the clarity of the words.").

CONCLUSION

Our decisions in Walzer and Carroll reiterated what the HCMCA already made obvious: the Legislature has set forth clear requirements that parties must follow in certain cases against health care providers. One of those requirements is that claimants or plaintiffs must attach a report from their attesting expert to their certificate of qualified expert. Among other things, the report must state what the standard of care was and how the defendant allegedly departed from it. Petitioners failed to satisfy the report requirement, and they have not persuaded us that Dr. Berger waived his challenge to the certificate's sufficiency or that the trial court abused its discretion when it rejected Petitioners' argument that there was good cause to grant them more time to do so. Under these circumstances, § 3-2A-04(b) requires dismissal without prejudice of Petitioners' case.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONERS.

BELL, C.J., MURPHY and ELDRIDGE, JJ., dissent.

MURPHY, J., dissenting, which BELL, C.J. and ELDRIDGE, J. join.

In my opinion, it is unfair to extend the holding of Walzer v. Osborne to cases in which, before filing the motion to dismiss on the ground that the plaintiff failed to file a sufficient "certificate of qualified expert," the defendant — as a result of pre-trial discovery that preceded the " Walzer" motion — had already been provided with all of the information required by CJ § 3-2A-04(b). I would therefore reverse the judgment of the Circuit Court and direct that the case be remanded for a determination of whether the case at bar is such a case. If it is, the Petitioners should not be denied their day in court.

Chief Judge BELL and Judge ELDRIDGE have authorized me to state that they join this dissenting opinion.

Gail A. KEARNEY, Indi v. dually, etc., et al.

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