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Zahl v. Grossbart

May 19, 2008


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-10766-06.

Per curiam.


Submitted April 16, 2008

Before Judges Cuff and Lihotz.

Plaintiff appeals from a Special Civil Part judgment, entered following a bench trial, awarding him $1500 of his total claim for expert witness fees. We affirm the judgment amount, but remand the matter for entry of an order fixing costs of suit pursuant to Rule 4:42-8.

Defendant Douglas Grossbart, M.D, engaged plaintiff Kenneth Zahl, M.D., to provide expert witness services in a medical malpractice matter (the Smith case). In the Smith case, Grossbart was the plaintiff's attorney and Zahl was the plaintiff's expert physician.

On February 8, 2006, Zahl sent correspondence to Grossbart listing his fee schedule. Zahl's fee schedule included $350 per hour for review of records; $500 per hour for deposition testimony; $4000 for one-half day trial appearance and $8000 for a full day trial appearance. No express contract was reached, formalizing Grossbart's agreement to pay Zahl's proposed fees for services to be rendered.

Zahl's deposition was taken by the defense in the Smith case on February 13, 2006. Payment of the $375 bill for Zahl's appearance was satisfied by the defense. Trial in the Smith case commenced on February 14, 2006. Zahl appeared at 9 a.m. and his testimony concluded at 1 p.m. Grossbart did not pay Zahl's $4000 bill.

Contemporaneous with Zahl's agreement to provide expert services in the Smith case, an investigation of Zahl's billing practices by the New Jersey Board of Medical Examiners (Board) was underway. "The Board found that Zahl . . . willfully engaged in numerous dishonest acts over a course of years, including Medicare and insurance fraud and maintaining improper patient records. The Appellate Division reversed the Board's penalty, concluding that license revocation [was] unduly harsh in view of the absence of patient harm." In re License Issued to Zahl, 186 N.J. 341, 343 (2006). However, on the Board's petition for certification, the Supreme Court affirmed Zahl's license revocation. Zahl was officially debarred on May 11, 2006.

Following Zahl's presentation of his case supporting payment, Grossbart stated Zahl's lack of candor about the status of his license negatively impacted his trial credibility in the Smith case. Grossbart argued Zahl's testimony as Smith's treating physician was undercut by the prior judicial findings of Zahl's dishonesty.

The trial judge concluded that although there was no express contract, Zahl was entitled to receive the reasonable value of his services, which he determined to be $375 per hour, which was the hourly rate paid to Zahl for his pre-trial deposition. Zahl appeals the finding relative to the reasonable hourly rate for his services and the denial of prejudgment interests and costs.

The factual findings of a trial court in a non-jury case should not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); Torres v. Schripps, Inc., 342 N.J. Super. 419, 431 (App. Div. 2001). Rather, a trial court's findings of fact are entitled to "great deference," and should not be disturbed unless they constitute an abuse of discretion or are clearly erroneous. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 367-68 (1999); Torres, supra, 342 N.J. Super. at 431. Credibility determinations fall within the trial court's deferential factfinding authority. Ferdinand v. Agric. Ins. Co. of Watertown, 22 N.J. 482, 495 (1956).

Following our careful review of the record, we conclude the trial judge's factual findings as to the damage award were amply supported by competent, substantial, and credible evidence in the record and we have no occasion to disturb them. Rova Farms, supra, 65 N.J. at 484. We are also satisfied that the judge did not misapply his discretion in denying Zahl's request for prejudgment interest. County of Essex v. First Union Nat'l. Bank, 186 N.J. 46, 61 (2006); Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div.), certif. denied, 165 N.J. 607 (2000).

However, we are not satisfied that the judge correctly denied Zahl's request for costs of suit, including filing and service fees as permitted by Rule 4:42-8(a). The trial judge failed to express any special reasons for denying the award of costs. Regino v. ...

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