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Burd v. Hackensack Hospital Association

February 6, 1984

LILLIAN W. BURD, PLAINTIFF,
v.
HACKENSACK HOSPITAL ASSOCIATION, ROBERT FRANKEL, SAMUEL LIPSETT, WILLIAM B. OBER, STEVEN SCHUSTER AND S. M. STEWART ANDERSON, DEFENDANTS



Simpson, A.j.s.c.

Simpson

This is an application under R. 1:21-7(f) -- prior to revision of R. 1:21-7 effective as to fee arrangements entered after January 15, 1984 -- for an increased attorney's fee in excess of the amount allowable pursuant to R. 1:21-7(c).

In July 1980 a surgical biopsy of plaintiff's left breast was misdiagnosed by a pathologist as benign when it was in fact malignant. As a result a tumor was removed, but another developed about a year later and in September 1981 a complete radical mastectomy was required due to the then existing stage III metastatic breast cancer. The doctor admitted the error;

the jury found malpractice and that such negligent deviation from accepted standards of medical practice was the proximate cause of the injury to plaintiff; and the damages verdict was $325,000. Disbursements were $8,436.24 (of which plaintiff advanced $6,555.36) and the R. 1:21-7(d) net aggregate recovery was therefore $316,563.76. Prejudgment interest, pursuant to R. 4:42-11(b) was about $65,000, for a gross award of about $390,000. To avoid a threatened appeal, plaintiff agreed to a $15,000 reduction of the prejudgment interest and accepted a gross sum of $375,000.

The requested fee is a flat one-third of the net aggregate recovery or 33 1/3% of $316,563.76, which is $105,521.25. R. 1:21-7(d) and R. 4:42-11(b) preclude counsel fees on prejudgment interest and no such request is made. Plaintiff fully supports the request since she signed a New York retainer on the basis of a one-third contingent fee, and because she will net more than she expected prior and during trial when settlement negotiations were going on. This concurrence is entitled to consideration, but is not controlling. Murphy v. Mooresville Mills, 132 N.J. Super. 197 (App.Div.1975); Daly v. A & P, 191 N.J. Super. 622 (Law Div.1983). It is virtually impossible for lay persons to make informed judgments as to the reasonableness of attorneys' contingent fees, since they do not have the experience required to make a comparative evaluation of the factors involved in a particular case against the presumed reasonableness of the percentages set forth in R. 1:21-7. Landgraf v. Glasser, 186 N.J. Super. 381, 385 (Law Div.1982); Iskander v. Columbia Cement Co., 192 N.J. Super. 114 (Law Div.1983).

As in Merendino v. FMC Corp., 181 N.J. Super. 503 (Law Div.1981), this is a case that for fee purposes falls somewhere between the situations in Murphy v. Mooresville Mills, supra, and Bolle v. Community Memorial Hospital, 145 N.J. Super. 593 (App.Div.1976). In view of the excellent result and plaintiff's satisfaction, it is a situation where the 10%

multiplier under R. 1:21-7(c)(6) should be increased to 20%. Merendino, supra; Pacillo v. Harris Mfg. Co., 182 N.J. Super. 322 (Law Div.1981); Tobias v. Autore, 182 N.J. Super. 328 (Law Div.1982); Landgraf, supra; McNelis v. Cohen, 188 N.J. Super. 87 (Law Div.1982); and Iskander, supra. Under R. 1:21-7(f) a reasonable fee in light of all the circumstances is $72,779.42 calculated as follows:

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

(1) 50 $1,000.00 $500.00

(2) 40 2,000.00 800.00

(3) 33 1/3 47,000.00 ...


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