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United States Court of Appeals for the Ninth Circuit
February 12, 2016, Argued and Submitted, Pasadena, California; June 9, 2016, Amended
[*539] AMENDED OPINION
MARBLEY, District Judge:
Defendants-Appellants Nobel Biocare Holding AG, Nobel Biocare AB, and Nobel Biocare USA, LLC (collectively, "Nobel") appeal the district court's order awarding class counsel more than $2.3 million in attorneys' fees. Defendants appeal on four bases. First, they contend that the district court violated their due process rights by basing its fee order on an ex parte, in camera review of timesheets that they could not review or challenge. Second, they argue that the district court did not adequately [*540] discount the lodestar. Third, they assert that the district court's crosscheck of the lodestar was flawed. Finally, they submit that the district court erred in awarding a multiplier [**4] based solely on the contingent risk factor of the litigation. Plaintiffs argue that Defendants have waived the first argument by failing to raise the issue timely or adequately.
We find that Defendants have not waived their due process argument, and we vacate the district court's fee order and remand with instructions.
Named Plaintiff Dr. Jason Yamada, DDS is a Torrance, California-based dentist specializing in tooth implants. Dr. Yamada attended a promotional symposium in 2004 hosted by Nobel featuring their NobelDirect dental implants. Following the symposium, Dr. Yamada implanted dozens of NobelDirect implants into his patients but noticed that the implants failed at a rate he deemed unusually high. Just over a year after the implant's launch, two Swedish professors at the University of Gothenburg warned that the implants were causing bone loss, and they urged Nobel to withdraw the implants from the market. In response to those allegations, Nobel contacted the Swedish Medical Products Agency ("SMPA"), a government agency akin to the United States Food and Drug Administration, to investigate. In February of 2008, the SMPA formally closed its investigation with no adverse [**5] findings as to the implants' safety or efficacy. Nevertheless, at least a dozen of Dr. Yamada's patients' NobelDirect implants failed, which necessitated explant surgery—that is, removal of the implants—oral reconstruction, implant replacement, and continued monitoring. Dr. Yamada performed those necessary reparative surgeries at his own expense.
On June 30, 2010, Dr. Yamada filed a class action complaint against Nobel alleging a defect in the NobelDirect implant. The complaint alleged causes of action for declaratory relief, implied indemnity, breach of express and warranty, and a violation of California Unfair Competition Law ("UCL"), California Business and Professions Code §§ 17200, et seq.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
825 F.3d 536 *; 2016 U.S. App. LEXIS 10581 **
JASON M. YAMADA, D.D.S., on behalf of himself and others similarly situated, Plaintiff-Appellee, v. NOBEL BIOCARE HOLDING AG; NOBEL BIOCARE AB; NOBEL BIOCARE USA, LLC, Defendants-Appellants.
Subsequent History: Later proceeding at Yamada v. Nobel Biocare Holding AG, 2016 U.S. Dist. LEXIS 82542 (C.D. Cal., June 24, 2016)
Prior History: [**1] Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-04849-MWF-PLA. Michael W. Fitzgerald, District Judge, Presiding.
Yamada v. Nobel Biocare Holding AG, 821 F.3d 1058, 2016 U.S. App. LEXIS 7122 (9th Cir. Cal., Apr. 20, 2016)
Disposition: VACATED AND REMANDED.
district court, implants, timesheets, lodestar, settlement, warranty, attorney's fees, fee order, in camera, redacted, opposing counsel, time records, cross-check, calculated, documents, patient, fee award, billing, VACATE
Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Remedies, Costs & Attorney Fees, Attorney Fees & Expenses, Reviewability of Lower Court Decisions, Preservation for Review, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Class Actions, Class Attorneys, Fees, Attorney Fees & Expenses, Reasonable Fees, Judicial Officers, Judges, Discretionary Powers