Attorneys’ fees in $190M Levy settlement challenged again

Listen to this article

The class counsel representing former patients of Nikita Levy have “placed themselves in irreconcilable conflicts” by preferring their 4,000 direct clients over the entire 8,000-plus plaintiffs who will share in a $190 million settlement, according to a memorandum filed last week challenging the proposed attorneys’ fees.

Lawyers for the class are seeking 35 percent, or $66.5 million, of the settlement with the Johns Hopkins Hospital System that was approved less than two weeks ago.

A hearing on the attorneys’ fees is scheduled for Thursday afternoon in Baltimore City Circuit Court.

Levy, a former gynecologist at Johns Hopkins, took photos and videos of his patients during exams without their knowledge.

In a filing made last week, a lawyer for one former patient of Levy’s who has objected to the settlement argued the class counsel — which includes eight law firms — are attempting to pass on to the entire class the fees related to their direct representation of 4,000 individuals. Some non-class counsel plaintiffs also have to pay their personal attorneys and therefore could recover up to 20 percent less than the class counsel clients, according to the 82-page memorandum written by Barry J. Diamond.

The case was declared a mandatory class action last November, meaning prospective plaintiffs cannot opt out and sue on their own.

“Once Class Counsel committed to acting as such, they undertook to represent the best interests of a single client — the Class, owing allegiance only to the best interests of the Class as a whole,” wrote Diamond, a Baltimore solo practitioner, whose client is identified only by her claimant number.

More than two dozen of Levy’s former patients filed objections to the settlement. Lawyers at Salsbury, Clements, Bekman, Marder & Adkins LLC in Baltimore filed an objection on behalf of 25 patients the firm represented prior to the class being certified. But the objection was dropped last month, a week after it was filed, according to court records.

Paul D. Bekman, a lawyer for the group of objectors, did not return a message seeking comment Tuesday.

Diamond, in his brief filed last week, also reiterated arguments he made in a filing in August that called the fees “unreasonable.” The memorandum argues class counsel have not provided enough information to show their fee is warranted.

“Although this Action is styled as a class action, in light of the limited fund available to compensate the victims of Dr. Levy’s actions, the economic realities cannot be ignored,” Diamond wrote. “Class counsel cannot use the class-action device to procure an unreasonable fee for themselves at the expense of the class members.”

Lawyers for the plaintiffs indicated they could seek up to 35 percent of the total settlement in a notice sent out to prospective plaintiffs.

Jonathan Schochor, chairman of the class counsel, wrote in court filings that the fees are “consistent with established precedent in Maryland” and nationwide and that a large percentage of clients signed by the eight law firms involved with the case had contingency fee agreements of 40 percent.

Schochor, of Schochor, Federico and Staton P.A. in Baltimore, also said class counsel have spent more than $830,000 working on the case.

The memorandum objecting to the attorneys’ fees also claims a settlement in the case was inevitable in part because Hopkins wanted to prevent “a public relations nightmare from escalating.” Many of the plaintiffs’ claims might also have been barred because of the statute of limitations, according to the memorandum.

“It is very likely Hopkins had to call on its substantial political capital to pressure the insurers to pay toward a settlement the money they would undoubtedly otherwise expend defending hundreds of thousands of individual cases, particularly because the vast majority of the plaintiffs had no provable tort claims,” Diamond wrote.

Levy worked at Hopkins from 1988 until Feb. 8, 2013, when the hospital terminated his employment after being alerted to his possible misconduct. Police found 10 file servers’ worth of photos and videos among his possessions. Schochor has said all of the images will be destroyed.

Levy committed suicide less than two weeks after he was fired and days before two groups totaling 2,500 women filed multimillion-dollar class-action lawsuits against the hospital over his conduct.

The settlement was given preliminary approval in July. Individuals have until Nov. 14 to identify themselves as members of the class.

Diamond declined to comment further Tuesday afternoon. Schochor did not respond to requests for comment Tuesday afternoon.

In a separate filing from early September, Diamond’s client stated in an affidavit that a private investigator contacted her aunt and brother and alerted them that she was “entitled to a lot of money from the Dr. Levy settlement.” The woman stated she had never told her family she was a victim of Levy’s nor that she was involved in the class-action lawsuit, according to the affidavit.

All of the plaintiffs are identified as “Jane Doe” in the lawsuit unless they have agreed to reveal their identities.

Diamond asked a judge to find out who hired the private investigator and instruct the employer to not contact Diamond’s client. No action by the court has been taken in response to Diamond’s request, according to court records.