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Boston Scientific on hook for $68K over sanctions in defibrillator case

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REUTERS/Fabrizio Bensch

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(Reuters) - Boston Scientific Corp, after being sanctioned for discovery violations in a whistleblower lawsuit over allegedly defective defibrillators, has been ordered to pay the plaintiff about $68,400 in fees and expenses related to the sanctions motion.

U.S. Magistrate Judge Tony Leung in Minneapolis ruled Friday that whistleblower Steven Higgins' $114,000 fee request was too high, but rebuffed Boston Scientific's bid to slash it to no more than $32,000, finding the complexity of the case justified the involvement of multiple lawyers and high hourly rates.

The award comes less than a month after Boston Scientific prevailed in the case on summary judgment. It includes about $39,000 for work on the underlying sanctions motion, $27,000 on the subsequent fee dispute and $2,500 in expenses.

"We are pleased with Judge Leung’s order, and the thoughtful consideration he gave to our briefing," said Dan Miller of Walden Macht & Haran, a lawyer for Higgins. Rick Robinson of Reed Smith, a lawyer for Boston Scientific, declined to comment.

Higgins, a doctor who served on a Boston Scientific advisory board, filed the lawsuit in 2011 under the False Claims Act, which allows whistleblowers to sue companies on the government's behalf to recover taxpayer money paid out based on false claims.

He alleged that Boston Scientific concealed from the U.S. Food and Drug Administration that the company's Cognis CRT-D and Teligen ICD defibrillator devices suffered from major defects while the agency was considering their approval.

In February 2020, Leung sanctioned Boston Scientific for failing to include two ex-employees on a list provided to the whistleblower's lawyers of individuals who might have information relevant to the case. He found the omission "harmful and prejudicial" to Higgins and ordered the company to pay Higgins' fees in connection with the sanctions motion as a penalty.

In a court filing last October, Boston Scientific said Higgins was seeking compensation for an unnecessary "army of lawyers" and that his proposed hourly rates - including $773.82 for senior partner Miller and $345 for a paralegal - were excessive compared to prevailing rates in the Minneapolis area market.

Leung in Friday's order agreed that Higgins' request was too high. He adopted slightly lower rates, including $740 for Higgins and $250 for the paralegal, to calculate the "lodestar" used as the basis for the fee, which he reduced further after comparing it to similar cases.

U.S. District Judge Joan Ericksen, granting Boston Scientific summary judgment last month, wrote that Higgins' expert witnesses failed to support his claim that the company concealed any relevant reports of adverse events linked to the devices.

The case is U.S. ex rel Higgins v. Boston Scientific Corp, U.S. District Court, District of Minnesota, No. 11-cv-2453.

For Higgins: Daniel Miller and Jonathan DeSantis of Walden Macht & Haran and Joy Clairmont, Susan Thomas, William Ellerbe and E. Michelle Drake of Berger & Montague

For Boston Scientific: Rick Robinson and Lesley Reynolds of Reed Smith

Read more:

Boston Scientific balks at fee request, saying sanctions motion didn't need 'army of lawyers'

Boston Scientific prevails in defibrillator whistleblower case

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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