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Pettiford v. Eskwitt

Decided: May 2, 1983.

JOSH LAWRENCE PETTIFORD, AN INFANT BY HIS GUARDIAN AD LITEM, CLARENCE PETTIFORD; CLARENCE PETTIFORD INDIVIDUALLY; AND DAPHNE L. PETTIFORD, PLAINTIFFS,
v.
HERBERT ESKWITT, DEFENDANT



Simpson, A.j.s.c.

Simpson

[189 NJSuper Page 486] In this R. 1:21-7(f) application, plaintiff's counsel seeks an increased attorney's fee of 20% of the net aggregate recovery

over $250,000 in a medical malpractice action, instead of the 10% allowable under R. 1:21-7(c)(6). For the reasons to be stated, the request is approved.

On April 25, 1978 the parents of the infant plaintiff signed a standard New York one-third contingent fee retainer agreement with a New York law firm. The case was referred to present New Jersey counsel, who instituted suit on behalf of the parents and child on February 4, 1980. The child has severe neurological impairment which plaintiffs contend was partially caused by defendant's deviation from accepted standards of medical practice in diagnosis and treatment. A medical malpractice panel determined, pursuant to R. 4:21-5(e), that there were no deviations from accepted standards of medical practice and, accordingly, that the claims of medical malpractice were not based on reasonable medical probability. Since the findings and determination of the panel were unanimous, they were admissible in evidence at the trial -- but on November 12, 1982 a jury returned a verdict for plaintiffs and awarded the child $475,000 and the parents $225,000. The judgment entered January 17, 1983 included prejudgment interest of $159,913.30 and $75,750.00, respectively, on the child's and parents' damages awards. R. 4:42-11.

After denial of the usual motions for a new trial and judgment notwithstanding the verdict, defendant filed an appeal with the Appellate Division. Pending appeal and during post-trial settlement discussions, counsel filed the within R. 1:21-7(f) application. A supporting affidavit detailed almost 800 hours of legal effort in pretrial preparation and proceedings, a difficult six-day trial, and an outstanding result obtained by an attorney who is a recognized expert in the medical malpractice area. At a February 25, 1983 hearing and by affidavits filed with the application, the parents fully supported the increased fee application. This concurrence is entitled to consideration but is not controlling. Murphy v. Mooresville Mills, 132 N.J. Super. 197, 200 (App.Div.1975). Counsel and plaintiffs were

advised that the situation was similar to other cases approving an increased multiplier of 20% instead of 10% under R. 1:21-7(c)(6), such as Merendino v. FMC Corp., 181 N.J. Super. 503 (Law Div.1981) -- but that the application was premature in view of the pending appeal and ongoing settlement negotiations. In short, the child's interest was paramount and approval in advance of final disposition of the case was not proper -- in order to guard against any post-trial settlement of the appeal at the expense of the infant's share. If there had been no appeal and post-trial negotiations, the permissible fee under R. 1:21-7(c) would have been calculated on the net aggregate recovery of $693,159.25 (infant's recovery of $475,000, plus parents' recovery of $225,000, less disbursements of $6,840.75). R. 1:21-7(d). And since there was a full trial, the 25% limit on the first $50,000 of recovery would not be applicable. R. 1:21-7(c)(7). The fee calculation would have been as follows:

R. 1:21-7(c) % On Fee

(1) 50 $1,000.00 $500.00

(2) 40 2,000.00 800.00

(3) 33 1/3 47,000.00 15,666.67

(4) 25 50,000.00 12,500.00

(5) 20 150,000.00 ...


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