In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2092

DAVID DEICHER and MARY MEZERA, 

Plaintiffs-Appellants,

v.

CITY OF EVANSVILLE, WISCONSIN,

CHRISTOPHER JONES, individually

and in his official capacity as an

employee of the City of Evansville 

Police Department, and COMMUNITY 

INSURANCE CORPORATION,

Defendants-Appellees.

____________

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 06 C 356—John C. Shabaz, Judge.

____________

ARGUED DECEMBER 7, 2007—DECIDED SEPTEMBER 19, 2008

____________

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Jimmy Reiners called the

police department in Evansville, Wisconsin, claiming

that he needed Mary Mezera’s address in order to serve
2 No. 07-2092

papers on her regarding property that they jointly owned.

Officer Christopher Jones disclosed Mezera’s address to

Reiners who, as it turns out, is her abusive ex-husband

against whom she had a restraining order. Mezera and

her husband, David Deicher, sued the City of Evansville,

Wisconsin, Officer Jones, and the City’s insurer, Community Insurance Corporation, alleging that Officer Jones

violated the Driver’s Privacy Protection Act (“DPPA”)

when he disclosed Mezera’s address. After a jury verdict

in the plaintiffs’ favor, the jury awarded $25,000 in damages.

The plaintiffs appeal, contending that the district court

erred when it answered a question from the jury by

providing the filing date of the complaint, which was not

in evidence, but not the Notice of Claim, a properly

admitted exhibit filed prior to the complaint that indicated

the plaintiffs’ intent to file suit. We find that the district

court properly took judicial notice of the complaint filing

date, but because there is a reasonable possibility that

this date confused the jury, the court erred by failing to

provide the jury with the Notice of Claim. 

The plaintiffs also object to the district court’s calculation of the attorneys’ fees, maintaining that the court

committed error by limiting the attorneys’ fees to the

amount won at trial; however, since a new trial on damages is warranted, we need not reach this issue. Therefore,

we reverse the judgment and remand for a new trial

on damages and a new determination of attorneys’ fees.
No. 07-2092 3

I. BACKGROUND

Mary Mezera divorced her then-husband Jimmy Reiners

after years of physical and psychological abuse. On October 1, 2005, Mezera and her new husband, David Deicher,

left their home in Evansville, Wisconsin, and moved to a

new location in Beaver Dam, Wisconsin, which they

kept secret from Reiners. On February 2, 2006, Reiners

called the Evansville Police Department looking for

Mezera’s home address, allegedly for the purpose of

obtaining past due mortgage payments on property that

he jointly owned with Mezera. Officer Jones placed Reiners

on hold, obtained the plaintiffs’ new address from the

State of Wisconsin motor vehicle records, and provided it

to Reiners. He claims that he provided the address after

doing a brief check of Wisconsin’s civil litigation database,

but this database also contained Reiners’s and Mezera’s

divorce decree.

Reiners then attempted to contact the plaintiffs by

leaving a note in their mailbox. Mezera testified that

following the disclosure of her address, she received a

threatening phone call from Reiners; that she came

home on the day of Reiners’s birthday to find a table

overturned outside of her home; and that she lived in

constant fear that Reiners would return to harm her,

Deicher, or their animals. The plaintiffs complained to the

Evansville Police Department, which began an investigation. The Department concluded that Officer Jones made

a serious error by disclosing the plaintiffs’ address and he

was reprimanded.

On April 22, 2006, the plaintiffs served a letter on the

Evansville Police Department entitled “Notice of Claim,”
4 No. 07-2092

which informed the Department that the plaintiffs intended to file a lawsuit. The plaintiffs filed suit on June 30,

2006 against Officer Jones, the City of Evansville, and its

insurer for violating the DPPA. That statute prohibits

anyone from obtaining or disclosing information from

motor vehicle records, subject to certain exceptions. See

18 U.S.C. § 2724(a).

At trial, the plaintiffs argued that Officer Jones falsified

his report regarding the incident with Reiners to provide

a potential defense to the plaintiffs’ DPPA claim. There

is an exemption to DPPA liability if the information was

given to a third party for “use in connection with any civil,

criminal, administrative, or arbitral proceeding in any

Federal, State, or local court or agency or before any

self-regulatory body, including the service of process,

investigation in anticipation of litigation, and the

execution or enforcement of judgments and orders, or

pursuant to an order of a Federal, State, or local court.” 18

U.S.C § 2721(b)(4). 

Officer Jones’s report, which he claimed to have prepared

a few days after he disclosed the plaintiffs’ address, stated

that the plaintiffs’ address was provided to Reiners for

“service of process” of documents relating to the foreclosure of a trailer that Mezera and Reiners owned during

their marriage. The report further states that Officer Jones

had run Reiners’s name through a federal law enforcement database before giving out the plaintiffs’ address.

The plaintiffs claim, however, that this information was

entered into the computer system months after the incident, specifically after the Department received the plain-
No. 07-2092 5

tiffs’ Notice of Claim indicating that they planned to

file suit over the DPPA violation.

At trial, the plaintiffs maintained that the Police Department initiated an extensive coverup of this incident. Officer

Jones testified that he ran a background check on Reiners

through a federal law enforcement database prior to

disclosing the plaintiffs’ address, which revealed no

criminal background. There was no record in the system,

however, of Officer Jones ever accessing state or federal

records on February 2, 2006. In addition, the Chief of the

Evansville Police Department acknowledged that he

wrote a letter to the manager of the federal law enforcement database asking whether Officer Jones conducted

the requisite background check on Reiners and received

a response that Officer Jones had never run

Reiners’s name through the federal database. Although

Officer Jones was reprimanded for disclosing the plaintiffs’ address, on cross-examination the Chief admitted

that Officer Jones was not disciplined for stating in his

official police report that he had run Reiners through the

federal database, nor was the report ever corrected to

reflect that the federal background check had never

been conducted.

Officer Jones also testified that he ran a background

check on Reiners through various Wisconsin databases

prior to disclosing the plaintiffs’ address, but this information was not in his report and the records from the

database showed that Reiners’s name was run days after

he contacted Officer Jones. The Wisconsin databases also

disclosed that Mezera had a restraining order against
6 No. 07-2092

Reiners, although Officer Jones denied under oath

having seen the order. Had he actually run the background

check, the plaintiffs contend, Officer Jones would have

discovered that Reiners had a violent history and a restraining order against him that would have alerted

Officer Jones not to provide Reiners with the plaintiffs’

address. Furthermore, the plaintiffs argue that Reiners

never mentioned anything about “serving papers” in his

call with police, undermining the truthfulness of Officer

Jones’s report.

After a one-day trial on liability, the jury found that

Officer Jones provided the plaintiffs’ address to Reiners

in violation of the DPPA and returned a verdict in their

favor. During the trial to determine damages, the jury sent

a question to the court asking for the date the case was

filed. That date had not been entered into evidence.

Both the parties objected, the defendants because they

were not sure why the jury needed the date and the

plaintiffs because they believed that what the jury actually

wanted to know was the date when the Notice of Claim

had been served on the defendants, not the date the

complaint had been filed. The district court provided

the date the case had been filed, commenting: “Over the

objection of counsel, the Court is going to provide this

very meaningful piece of information to the jury. And

I’ll tell them also the sun rises in the east and sets in

the West [sic] if they want to know.”

The jury awarded Mezera $14,500 and Deicher $1,000 in

compensatory damages. The latter was increased upon

the plaintiffs’ motion to the statutory minimum of $5,000.
No. 07-2092 7

The jury also awarded the plaintiffs $5,500 in punitive

damages, for a total damages award of $25,000. These

amounts were substantially less than the amounts that the

plaintiffs asked for at trial, where they contended that

they suffered severe emotional trauma after learning

that Reiners knew where they lived.

The plaintiffs moved for a new trial based on the

district court’s communication to the jury of information

outside the record, and they maintained that the

punitive damages award was grossly inadequate. They

also sought attorneys’ fees under the DPPA, 18 U.S.C.

§ 2724(b), seeking the lodestar of $192,062.50 incurred

in litigating their case. The district court first denied

$50,345 of the fee request, stating that certain billed hours

were duplicative, excessive and/or unnecessary. Rather

than awarding the $141,717.50 remaining after this reduction, however, the court then limited the fee award to

$25,000 on the rationale that the attorneys’ fees should

not exceed the amount the jury awarded to the plaintiffs

in damages. 

The plaintiffs’ counsel then moved for an additional

$13,276 in fees for litigating the fee award. The district

court awarded one-eighth of this request, or $1,659.50,

reasoning that since the plaintiffs had received one-eighth

of what had been requested in fees for the main litigation,

they should receive one-eighth of the amount requested

for litigating the fee award. The court then denied the

plaintiffs’ motion for a new trial on damages.
8 No. 07-2092

II. ANALYSIS 

A. The district court was entitled to take judicial

notice of the complaint filing date. 

We review the district court’s denial of a motion for a

new trial for an abuse of discretion. Huff v. Sheahan, 493

F.3d 893, 899 (7th Cir. 2007). The plaintiffs claim that a

new trial is required on the issue of damages because

the district court answered a jury question with information extrinsic to the record—the complaint filing date—and

committed error per se which, the plaintiffs maintain, by

definition means that the improper communication

influenced the jury’s verdict. Specifically, they argue the

district court should have provided the jury with the

date of the Notice of Claim and not the complaint filing

date which, they claim, was improper extrinsic evidence.

We review the district court’s answer to a jury question

for an abuse of discretion. United States v. Hewlett, 453

F.3d 876, 880 (7th Cir. 2006); United States v. Sababu, 891

F.2d 1308, 1333 (7th Cir. 1989).

It is undisputed that the complaint filing date was not

admitted into evidence. See United States v. McClellan, 165

F.3d 535, 551 (7th Cir. 1999) (“Should the jury request

clarification on a matter during deliberations, it is when

the court responds with a misleading, incorrect, unclear

or unresponsive (i.e., not with ‘concrete accuracy’) statement of law or fact, or with facts not in evidence, that we

might have cause for concern.”) (emphasis added). However, the complaint filing date, similar to other documents

that are either directly related to or produced during the

course of the proceedings, does not generate the same
No. 07-2092 9

concerns that are present when evidence that is outside

the scope of the proceedings is introduced. See In re

Hanford Nuclear Reservation Litig., 497 F.3d 1005, 1033 (9th

Cir. 2007) (finding that evidence from the defendant’s

first trial, although not introduced into evidence and

improperly referenced during the second trial, was not

extrinsic information); Smith v. Duncan, 297 F.3d 809, 815

(9th Cir. 2001) (taking judicial notice of state court documents that were not admitted into evidence but had a

direct relationship to the appeal).

We could find no cases where circuit courts have resolved the issue of whether a court may take judicial

notice of the complaint filing date, but several district

courts have held that a court may take judicial notice of

the date a complaint is filed, and once it does so, that

information is no longer extrinsic to the record. See, e.g.,

Gilman v. Schwartz, No. 05 C 2222, 2006 WL 2827409, at *1,

n.1 (E.D. Cal. Sept. 29, 2006) (taking judicial notice of the

complaint filing date because that date was essential to

the adjudication of the issues in the case); Gulf Ins. Co. v.

Glasbrenner, 343 B.R. 47, 63 (S.D.N.Y. 2006).

Additionally, a court can take judicial notice of matters

of public record. Pugh v. Tribune Co., 521 F.3d 686, 691, n.2

(7th Cir. 2008) (taking judicial notice of stock prices); see

also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.

2001) (holding that a district court can take judicial

notice of a waiver of extradition, which is a matter of

public record, but erred by taking judicial notice of disputed facts). Since the complaint filing date is a matter

of public record and subject to judicial notice, we find

that it is not extrinsic evidence.
10 No. 07-2092

B. The district court abused its discretion when it

failed to provide the jury with the Notice of Claim

during deliberations.

Although the district court was entitled to take judicial

notice of the complaint filing date, its decision to

provide this information to the jury brought out a fundamental error in the proceedings: its failure to allow the

jury to consult the Notice of Claim during deliberations

even though the plaintiffs had requested the jury be

allowed to do so. A district court’s answer to a jury’s

question must be viewed in light of the issues presented

at trial. See, e.g., United States v. Watts, 29 F.3d 287, 291

(7th Cir. 1994). The answer to a jury question might

implicate other evidence presented in the case, id., and

this is the situation with the Notice of Claim exhibit

that was excluded from the jury here.

Generally, it is within the trial court’s discretion to

determine which exhibits are provided to the jury during

deliberations; we review this decision only for a clear

abuse of discretion. United States v. Biggs, 491 F.3d 616,

623 (7th Cir. 2007); United States v. Arroyo, 406 F.3d 881,

886 (7th Cir. 2005). Such discretion is usually exercised

to exclude exhibits that neither party has relied on, that

have no relevance to any of the issues central to the case, or

that are cumulative, prejudicial, confusing, or misleading.

See Fed. R. Evid. 403 (allowing the judge to exclude relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation
No. 07-2092 11

of cumulative evidence”); see also United States v. Gross, 451

F.2d 1355, 1359 (7th Cir. 1971) (affirming the exclusion

of exhibits that contained conflicting statutes and ordinances that had no bearing on issues in the case). The

clear abuse of discretion standard is deferential and

recognizes that “[t]he admission or exclusion of evidence

is a matter particularly suited to the broad discretion of

the trial judge.” United States v. Casoni, 950 F.2d 893, 902

(3rd Cir. 1991) (internal quotation marks and citation

omitted). In applying this standard, we give “special

deference” to the district court’s handling of the

exhibits, Biggs, 491 F.3d at 623, but we must still consider

whether the district court has exercised its discretion in a

reasonable manner. See Cincinnati Ins. Co. v. Flanders Elec.

Motor Service, Inc., 131 F.3d 625, 628 (7th Cir. 1997) (“A

decision constitutes an abuse of discretion when it is ‘not

just clearly incorrect, but downright unreasonable.’ ”)

(citation omitted); see also Casoni, 950 F.2d at 902 (noting

that the discretion accorded to district courts “is not

unlimited”).

The situation before us, where the appellant argues that

a district court has denied a request to have the jury

consult a properly admitted exhibit, seems to be rare.

More commonly, a party argues that a jury has been

exposed to information not admitted into evidence. In

the latter case, to obtain a new trial, a party must show

that it was prejudiced by the improper exposure. See

United States v. Magana, 118 F.3d 1173, 1183 (7th Cir. 1997)

(“Even if a defendant alleges that improper material was

before the jury . . . he must still show ‘that there was

some prejudice or substantial right affected by the presence.’ ”) (citation omitted); see also Bankcard America, Inc. v.
12 No. 07-2092

Universal Bancard Systems, Inc., 203 F.3d 477, 483 (7th Cir.

2000) (“When unapproved material reaches the jury, the

trial court must decide whether there is a reasonable

possibility the material altered the jury’s verdict.”).

We have also required a showing of prejudice for properly admitted exhibits that allegedly improperly influenced

the jury. United States v. Best, 939 F.2d 425, 429 (7th Cir.

1991) (en banc) (finding that the jury was not prejudiced

by exposure to evidence that had been properly admitted at trial); see also United States v. Parker, 491 F.2d

517, 521 (8th Cir. 1973) (“Probative value of evidence

admitted must be weighed against possible prejudice that

may result if the exhibits are sent to the jury.”). Thus, we

hold that a new trial is required if there is a reasonable

possibility that a party is prejudiced by the district court’s

failure to provide certain exhibits to the jury, even if the

exhibits are properly admitted. See generally Bankcard

America, Inc., 203 F.3d at 480-81 (“A new trial is granted if

the verdict is against the manifest weight of the evidence

or if a prejudicial error occurred. Even if errors occurred,

no new trial is required if the errors were harmless.”); cf.

Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1142

(7th Cir. 1992) (where jury was exposed to extraneous

evidence, the inquiry is “whether there is a reasonable

possibility that the communication altered [the jury’s]

verdict”) (internal quotation omitted); Haugh v. Jones &

Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991) (same).

Where a district court has unreasonably excluded exhibits

from the jury to the detriment of a party and there is a

reasonable possibility that the exclusion of this evidence

influenced the verdict, this is a clear abuse of the district

court’s discretion.
No. 07-2092 13

Although on appeal the plaintiffs couched most of their 1

arguments in terms of the complaint filing date being inadmissible because it was extrinsic to the record, there is no issue of

waiver here. The plaintiffs specifically reference the district

court’s failure to provide the jury with the Notice of Claim

in their brief, objected strenuously in the district court over

this specific issue, and raised it in their motion for a new trial.

Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006)

(“To preserve an issue for appellate review, a party ‘must

make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection.’ ”) (internal

citation omitted).

Applying these standards, we find that the plaintiffs

were prejudiced by the district court’s failure to provide

the jury with the Notice of Claim, and its refusal to do so

was a clear abuse of discretion. When the jury asked 1

for the complaint filing date, both the plaintiffs and the

defendants objected. The plaintiffs specifically asked

that the jury be given the date of the Notice of Claim

and argued that what the jury really wanted to know was

when the defendants learned about the lawsuit, since

during trial the plaintiffs had provided arguments and

evidence on this point. The district court refused. After

reading the question from the jury, the following exchange took place between the district court judge and

the plaintiffs’ counsel:

Plaintiffs’ counsel: Your honor, I renew our request

that they get the date of claim.

The Court: I deny that request. Because that isn’t even

close to what they want. You don’t know. I know
14 No. 07-2092

exactly what they want. They don’t even know there

is a notice. 

. . . 

The Court: What’s the objection to sending them the

date this case was filed?

Plaintiffs’ counsel: Because I don’t believe that’s what

they’re interested in, your Honor. What they want to

know is when these people first learned that there

might be a lawsuit. We made an argument about that.

We presented an exhibit about that. That’s why we

put the exhibit in showing the notice of claim, and we

questioned Chief McElroy about it. That’s what

they’re interested in is when the Defendants learned

about the lawsuit. I think. And the only way to find out

if that’s the cases is to give them that exhibit, which

is admitted in evidence. If that’s not the one they

want, they’s [sic] can come back with the question,

“No. We want to know when the suit was filed.” At

that point, you can give them that.

The Court: I can give it right now, and I am giving

it right now.

We are particularly troubled by the district court’s

statement that “They don’t even know there is a notice”

when plaintiffs’ counsel asked that the Notice of Claim

be sent back to the jury. Given that the Notice of Claim

was a properly admitted exhibit and central to the plaintiffs’ theory of damages, the district court’s statement

was clearly wrong. In fact, it was very pertinent to the

proceedings and was relevant to whether there was a
No. 07-2092 15

willful violation of the DPPA. See 18 U.S.C. § 2724(b)

(stating that the court may award punitive damages

“upon proof of willful or reckless disregard of the law”).

Furthermore, the district court’s decision to provide

the complaint filing date to the jury, but not the Notice of

Claim date, skewed the proceedings in favor of the defendants. In McClellan, 165 F.3d at 551, we held that “a

judge’s response to a jury’s question must not highlight one witness’ testimony over another’s”; the same

rationale applies when the district court’s response to a

jury’s question implicates exhibits that provide not only

context for the answer given to the jury, but might also

clarify any potential discrepancies or confusion that

result from answering the question in the first place. See

United States v. Carani, 492 F.3d 867, 874 (7th Cir. 2007)

(“[T]he district court retains broad discretion in deciding

how to respond to a question propounded from the jury

and . . . the court has an obligation to dispel any confusion quickly and with concrete accuracy.”) (citing

United States v. Sims, 329 F.3d 937, 943 (7th Cir. 2003)).

The defendants claim that there may be another explanation for the jury’s request for the complaint filing

date—that it wanted to determine whether or not the

plaintiffs had incurred medical expenses and treatment

prior to the date the action was filed. That is certainly a

fair reading of the jury’s request for the complaint filing

date, for the jury also asked several questions regarding

the plaintiffs’ medical expenses. But there is a reasonable

possibility that the jury’s request for the complaint filing

date was to determine if the case was filed before or

after the final police report was completed. Given this
16 No. 07-2092

possibility, we cannot say that the jury was not prejudiced

by the district court’s failure to provide it with the

Notice of Claim.

The district court had several options at its disposal:

it could have given all of the exhibits to the jury at the

close of evidence, provided the jury with the Notice of

Claim with a proper limiting instruction, given a factually

correct explanation why it was not appropriate for the

exhibit to be given to the jury at all, or it could have

opted to provide neither date to the jury. See United States

v. Salerno, 108 F.3d 730, 745 (7th Cir. 1997) (“[A]s long

as the district court is evenhanded in its evidentiary

rulings, [it] has wide discretion in determining whether

an exhibit will be allowed to go into the jury deliberation

room.”) (citation omitted); United States v. Samples, 713

F.2d 298, 303 (7th Cir. 1983) (finding that “the district

judge did not selectively send only prejudicial evidence

to the jury room [because] [a]ll exhibits, the government’s and the defendant’s, were given to the jury”). We

likely would have found all of these to be a reasonable

exercise of discretion.

Normally, the district court’s failure to provide a properly admitted exhibit to the jury during deliberations

would not cause an alarm: the court is entitled to

instruct the jurors to rely on their collective memories

in instances where the trial was short, as it was here, and

the information should be fresh in the jurors’ minds. United

States v. Guy, 924 F.2d 702, 708 (7th Cir. 1991) (finding that

the refusal to provide a jury with a transcript is not an

abuse of discretion when the trial is short and the jurors

should be able to remember the pertinent testimony).
No. 07-2092 17

Here, however, we find that the district court’s exclusion

of the Notice of Claim from the jury deliberations was

an abuse of discretion. The amount awarded in damages

reflects the jury’s skepticism of the plaintiffs’ theory of

liability, and indicates possible confusion between the

date of the complaint and the date of the Notice of Claim.

The plaintiffs requested one million dollars in

punitive damages and alluded that even more might be

appropriate for compensatory damages, but the plaintiffs received only a small fraction of that amount. If the

plaintiffs are ultimately awarded the same amount on

remand, it should be done upon consideration of the

most pertinent evidence in the record.

In reaching this outcome, we note that this decision

should not, in any way, be seen as diminishing the discretion that district courts have to determine which

exhibits should be provided to the jury during deliberations. But this discretion cannot be exercised in a manner

that unduly burdens the jury’s ability to come to a fair

and accurate resolution of the issues in the case. We

urge the district court to revisit its established practice

(though not stated in writing in the rules of the court or

anywhere else) of allowing only certain exhibits to go

back to the jury, specifically when an exhibit has been

properly admitted into evidence, is integral to the issues

in the case, and a party requests that the jury receive it.

Accordingly, we find that the plaintiffs require a new

trial on damages, and we need not reach the question of

whether the district court erred in calculating attorneys’

fees. See generally Pardo v. Hosier, 946 F.2d 1278, 1285 (7th
18 No. 07-2092

Cir. 1991) (“When a judgment on which an award of

attorneys’ fees to the prevailing party is based is reversed,

the award, of course, falls with it.”). We note, however,

that the way in which the district court made its fee

calculations is likely unreasonable in light of the fact

that the plaintiffs ultimately prevailed at trial. Here, the

district court relied solely on the plaintiffs’ limited damages award in cutting their attorneys’ fee recovery by

almost 90%. After finding that some hours were duplicative and unnecessary, the district court initially found that

the plaintiffs’ counsel was entitled to a lodestar of

$141,717.50 (an amount that the plaintiffs dispute), but

the court went even further and reduced this amount to

$25,000 to match the $25,000 judgment awarded by the

jury. It also applied a similar rationale in reducing the

amount that the plaintiffs requested for attorneys’ fees

in litigating the fee award—the district court awarded

the plaintiffs one-eighth of the fees requested in connection with the litigation of their fee petition because the

plaintiffs recovered one-eighth of the fees that they had

requested for litigating the case.

While the plaintiffs’ success at trial is certainly one

consideration in reducing fees, see Simpson v. Sheahan, 104

F.3d 998, 1001 (7th Cir. 1997), this factor, although important, is not necessarily dispositive. See Spegon v. Catholic

Bishop of Chi., 175 F.3d 544, 558 (7th Cir. 1999) (“although

the fee award need not be proportionate to the amount

of damages a plaintiff actually recovers, it is a factor that

a court should consider when contemplating a reduction

of the modified lodestar amount”); Simpson, 104 F.3d at

1001 (besides success at trial, other considerations in
No. 07-2092 19

reducing attorneys’ fees are the significance of the legal

issue and the public purpose of the litigation).

The defendants’ counsel stated in oral argument that

its fees were approximately $120,000 to litigate this case, a

fact that provides some indication that the $142,000

lodestar that the district court initially calculated for the

plaintiffs’ attorneys’ fees was a reasonable amount to

expend on litigation. It cannot be the case that the prevailing party can never have a fee award that is greater than

the damages award, or in the alternative, if the party asks

for a bigger damage award than it actually receives, that

any fees incurred in litigating the case are automatically

reduced to the same amount as the damage award. In

any event, the district court’s decision to provide the

complaint filing date but exclude the Notice of Claim

exhibit from the jury prejudiced the plaintiffs, and we

conclude that this was an abuse of discretion, requiring

a new trial on damages.

III. CONCLUSION

Accordingly, we REVERSE the decision of the district court

and REMAND for a new trial on damages. Circuit Rule 36

shall apply. 

9-19-08