costs has been resolved adversely to defendant by the Court of Appeals, and in view of defendant's agreement not to contest liability for damages proximately caused by the crash, it cannot now dispute that plaintiffs are the prevailing party. Accordingly, the guardian is entitled to summary judgment against defendant for the amount of his reasonably incurred guardian's fees. There remains for consideration the amount of these fees.
In establishing the amount of fees to which the guardian is entitled, this Court will adopt the method established in Copeland v. Marshall, 205 U.S.App.D.C. 390, 641 F.2d 880 (1980), for calculation of attorneys' fees. This decision contemplates the Court first determining a "lodestar" fee based upon the number of hours spent and the normal market value of those services. The guardian has submitted an affidavit on the number of hours he has spent on these cases since his appointment and through May 19, 1981. He claims to have rendered services, the time-charge for which totalled $ 487,276.50, and to have incurred expenses of $ 45,935.91. He has already been paid a total of $ 156,278.71, which leaves a balance of $ 376,933.70. His affidavit includes biographies of all lawyers who worked on the case, as well as a statement that the rates at which compensation is sought are the normal billing rates for the respective members of the firm. Defendant has not challenged the rates. The Court finds that they are reasonable and constitute the market value of the services performed. Accordingly, these rates, multiplied by the number of hours properly allowable, will constitute the "lodestar" for purposes of determining the amount owed under Copeland v. Marshall, supra. The guardian does not now seek an upward adjustment of the lodestar for contingency, delay or similar factors, and the Court specifically finds that no downward adjustment is appropriate. These determinations are without prejudice to further interim and final computation as this complex matter unfolds.
There remain at present two other issues: whether any of the hours spent and expenses incurred were spent unreasonably or on matters that are more properly the responsibility of litigation counsel than of a guardian, and whether there should be subtracted from the amounts found owing amounts that have been or are to be set aside from the judgments in three cases which were settled prior to May 18, 1981.
The guardian has divided the time spent in this case into five categories: court appearances, communications with the families of the infant plaintiffs, settlement negotiations, administration of the Guardian's Fund, and legal issues. There can be little serious dispute as to the appropriateness of the first four of these categories of expenses. The guardian spent substantial time studying and perfecting the Court's suggestion that a trust mechanism might best accommodate the varying medical needs of individual plaintiffs injured in the crash. See, e.g., Memorandum of May 30, 1980. Many of the court appearances of the guardian were at the specific request of this or other courts, and related to conferences about settlement negotiations and scheduling, important responsibilities of the guardian in this case. Communication with the families, negotiation of settlements and administration of the Guardian's Fund are similarly at the core of the duties of a guardian ad litem.
Defendant objects to the guardian's three trips to Europe to meet with parents of infants, principally because it views these expenses as undertaken primarily to promote the plaintiffs' chances of success in this litigation. However, the guardian can quite properly conclude that the interests of each infant who was on board the C-5A are best served by his joining in this suit, because, among other things, the consequences of the crash to each infant may not be apparent immediately. The guardian's efforts in this respect promote the interests of all the infants. The Court finds that these expenses are reasonable and properly recoverable.
Time spent researching legal issues requires some discussion. Defendant has claimed that no time spent on legal issues is recoverable under Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). That position was rejected by the Court of Appeals in Schneider v. Lockheed, supra. But time spent on legal research that is more properly the role of litigation counsel should not be recoverable as a cost. See, e.g., Franz v. Buder, supra. At the request of the Court, the guardian has furnished a further breakdown of the hours spent on legal issues in his Third Supplemental Affidavit of November 16, 1981. There he divides the time spent on legal issues into ten categories: duties of the guardian ad litem, responsibility for fees and costs, filings responsive to pleadings of defendant and third-party defendant, prejudgment interest, forum non conveniens, administration of judgments, filings requested by the Court, the motion for preliminary injunction still under advisement, collateral estoppel, and miscellaneous issues. Time spent researching the duties of the guardian, responding to pleadings directed against the guardian by defendant and third-party defendant, research incident to administration of the judgments and filings requested by the Court are all clearly recoverable, as the Court of Appeals has suggested. Schneider v. Lockheed, supra, at 854-55.
Research on payment of fees and costs, prejudgment interest, forum non conveniens, and statute of limitations (one of the miscellaneous items) was done so that the guardian could arrive at an independent judgment on the value of plaintiffs' claims for settlement purposes. Though it may be that it is entirely proper for the guardian to furnish such a second opinion to plaintiffs, this is not the sort of expense which may be properly charged to Lockheed. Evaluation of claims and settlement offers and resolution of legal uncertainties in connection with such evaluations is a task normally performed by counsel. The function of a guardian ad litem is to protect the interests of those unable to protect their own interests. Many adult plaintiffs evaluate settlement offers without obtaining second opinions on the value of their claims or attempting to charge the costs of doing so to their opponents. While the infants here, who are incapable of exercising this choice for themselves, are entitled to a fully informed and competent judgment by someone with the capacity to exercise choice for them, they are not necessarily entitled to have this choice made by someone with all of the knowledge of litigation counsel on the legal issues involved, compensated at defendant's expense. However, the Court is persuaded that the relatively small amounts of time spent researching the issues of the preliminary injunction and collateral estoppel were reasonably spent in determining whether or not to pursue alternative courses of obtaining medical care and in developing an initial report to the parents.
The time spent in determining whether to retain the Lewis firm to litigate these cases and in developing the various trust provisions which might be used to protect sums recovered or received from settlements by the infants is clearly appropriate for a guardian ad litem and thus properly compensated by defendants. These items are elements of what the guardian has termed "miscellaneous" time, a category which also includes research on statutes of limitation, which is not compensable by defendant. Since some of these expenses are recoverable from defendant while others are not, and the expenses are not distinguished from each other by the guardian, the amounts currently in the "miscellaneous" category are excluded from the amount which the Court can now award. The guardian may file additional affidavits which state which of these expenditures fall into which categories to perfect his claim for those activities which are recoverable from defendant under the principles announced here.
Accordingly, the Court has determined that of the total additional compensation claimed by the guardian, $ 82,387.00, the amount of the disallowed claims for legal research, is not now recoverable from defendant. This leaves a total of $ 294,456.70 presently owed by defendant to the guardian. Lockheed claims, however, that it is entitled to setoff from this amount the portion attributable to the three cases that were settled prior to the Court of Appeals' decision (the cases of Adam Hung Wright, James Everett Reynolds, and Li Thi Hoang Phi Caspar). The guardian responds that the amounts which were set aside for the guardian ad litem in those cases were intended as insurance against the possibility that the guardian might go unpaid if this Court's determination that Lockheed is responsible for the fees of the guardian ad litem is reversed. However, Lockheed has persuasively responded that its settlements in these cases were intended to dispose of all claims by these plaintiffs against defendant, including costs of which the guardian's fees are an element. This Court has previously ordered that six and two-thirds percent of the settlement amounts in two of these cases be set aside for the guardian. The Court concludes that this approach should also be applied to the third of these cases (Caspar). The Court also concludes that one-half of the amounts so set aside is a reasonable approximation of the amount of the guardian's fees which are reasonably attributable to these cases. Though all plaintiffs have benefited from the guardian's activity, these plaintiffs have especially benefited from the effort made on behalf of plaintiffs who went to trial and by receiving an earlier recovery than many of their peers. Moreover, the guardian's participation in the settlement negotiations in these cases was for the direct and primary benefit of these plaintiffs. Finally, these plaintiffs can be reimbursed if it later appears that their share of the guardian's fees is disproportionate to that of other plaintiffs.
Accordingly, the Court concludes that defendant is entitled to a further credit in the amount of $ 72,036.00, representing one-half of the sum of the $ 66,700.00 set aside in Wright, $ 57,362.00 set aside in Reynolds, and $ 20,100 to be set aside in Caspar. This leaves the sum of $ 222,510.00 which is the amount the defendant must now pay to the guardian. This amount is certainly not unreasonable in view of the size of the settlements and verdicts which have been entered in these cases. In any future judgment or settlement which does not leave guardian fees to be determined separately, the sums determined to be owed for such fees will be assessed for services provided after May 19, 1981, and will of course be governed by the requirement of the Court of Appeals that services after that date be shown to have benefited the particular plaintiff.
Accordingly, an accompanying order grants judgment to the guardian against Lockheed for $ 222,510.00, and sets a hearing on February 5, 1982, at which time any of the plaintiffs in the three settled cases mentioned above may show cause why one-half of the amounts set aside for the guardian should not be disbursed to the guardian. The guardian may submit an additional affidavit to further segregate the "miscellaneous" time for which he is entitled to reimbursement. None of the foregoing precludes later review or further interim and final payments to the guardian ad litem.