Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

MEMORANDUM^** 

Timber Products Manufacturers Trust (Trust) appeals the district court's judgment following a bench trial in favor of the Southers' ERISA action for declaratory relief and for medical benefits under a group medical plan administered by the Trust. The Southers cross-appeal the district court's calculation of attorney fees and costs.

Despite overwhelming evidence to the contrary, the Trust asks this court to rely solely on the opinion of their consultant who neither examined Daniel nor saw all the evidence before the trustees. A variety of doctors and hospitals had concluded his mental and physical health had rendered him unable to support himself or conduct his affairs well before his nineteenth birthday.

The district court noted there are cases where the trustees were justified in relying solely on the opinion of an outside consulting physician. In each case, however, the consultant was asked to analyze objective medical data. In Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480 (9th Cir. 1990), the trustees relied solely on the opinion of the consulting physician who contradicted the treating one. The purpose, however, of seeking the consultant's advice in Jones was to critique the "experimental" treatment prescribed by the treating physician.

Here, however, the medical evaluation was subjective. The only doctor in disagreement with the general medical consensus was the trustee's own Dr. Ahluwalia. The district court was correct in finding that the trustees' decision denying benefits was not supported by substantial evidence.

After bringing this issue to the attention of the district court, the defendants stipulated to the amount owed to the Southers. We decline the Trust's invitation to remand.

In an ERISA case, the district court may award reasonable attorney fees to either party in its discretion. 29 U.S.C. § 1132(g) (1). Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), provides the guidelines in calculating attorney fees in all cases in which Congress authorizes an award to a prevailing party. Thorne v. City of El Sequndo, 802 F.2d 1131, 1141 n. 10 (9th Cir. 1986). The district court determined the fees as calculated by the number of hours reasonably spent on the litigation multiplied by a reasonable hourly rate following Kerr v. Screen Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). See D'Emanuele v. Montgomery Ward, 904 F.2d 1379 (9th Cir. 1990). It appropriately excluded fees attributable to erroneous arguments set forth by the Southers. See Thorne at 1141.

Particularly in light of the fact that the plaintiffs received the bulk of their requested fees, we find that the district court did not abuse its discretion when it modified the award based on its reading of Hensley and its progeny.

We decline to reach the remaining issue on cross-appeal as it does not affect our result. For the above stated reasons, the judgment of the district court is AFFIRMED.