This is an application under R. 1:21-7(f) for approval of an attorney's fee in excess of the contingent fee provided for in the retainer agreement and allowable under R. 1:21-7(c). The request is for an increase of the 10% otherwise allowable under R. 1:21-7(c)(6) as to recovery over $250,000, to 20%, relying upon Merendino v. F.M.C., 181 N.J. Super. 503 (Law Div.1981).
The trial judge approved a structured settlement for the benefit of an infant plaintiff, as well as reimbursement to the parents for $16,500 expenses, disbursements by counsel totalling $8,812.36, and a guardian ad litem fee of $772.50. The child, Johanna Marie Landgraf, was born December 30, 1976, is severely brain damaged, and is totally incapable of caring for herself. A medical malpractice action was commenced against an obstetrician, an anesthesiologist and a pediatrician. The anesthesiologist was uninsured, but ultimately contributed $100,000 of the settlement. The same insurance carrier covered the other two doctors, with the policy limits being $1,000,000 for the obstetrician and $500,000 for the pediatrician. The difficulties of the case are apparent from the findings of the R. 4:21 medical malpractice panel. A unanimous disposition would have been admissible at trial pursuant to R. 4:21-5(e). Two panelists determined that, as to one claim of malpractice, the obstetrician and anesthesiologist deviated from accepted standards of medical practice which was a proximate cause of the brain injury; but the third panelist disagreed. The panel unanimously rejected all other claims of malpractice, except that as to one claim against the pediatrician they unanimously found deviation from accepted standards but that such deviation was not a proximate cause of any injury to the infant.
The case was settled with the aid of the trial judge on the day of trial and after a full day's negotiations. The terms were $250,000 cash, $40,000 a year for the life of the child with a ten-year guarantee, and $100,000 lump sum at the end of ten
years. For fee purposes the settlement may be summarized as follows:
Cost*fn1 of $40,000 a year annuity 283,258.00
Cost*fn1 of $100,000 lump sum payable in ten years 35,242.00
Gross aggregate recovery $568,500.00