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Schnitzer v. Hackensack University Medical Center

July 21, 2009

JO ANN SCHNITZER AND STEPHEN SCHNITZER, PLAINTIFFS-APPELLANTS,
v.
HACKENSACK UNIVERSITY MEDICAL CENTER, DANIEL H. SMITH, M.D. AND ERIC ROTHSCHILD, M.D., DEFENDANTS. O'CONNOR, PARSONS & LANE, LLC, RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, L-2157-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 25, 2009

Before Judges Payne, Waugh and Ashrafi.

Plaintiffs Stephen Schnitzer and his wife, Jo Ann, appeal from a May 9, 2008 order approving the disbursement of expenses in the amount of $49,989.12, as set forth in the closing statement of the Schnitzers' attorneys, O'Connor, Parsons & Lane, LLC, incurred prior to settlement of the Schnitzers' medical malpractice case for the total sum of $1,100,000. They appeal, as well, from the trial judge's July 18, 2008 order denying reconsideration.

On appeal, plaintiffs present the following issues for review:

1. Did the court below err by failing to place fully the legal and factual reasons and factual findings for its decision upon the record below?

2. Was the decision below in error by paying medical expert witnesses who had no contract and brought no Quantum Meruit action below?

3. Are "standby" expert fees against public policy and not properly payable?

4. Was it a violation of R. 1:27-7(d) to allow a $1,500.00 deceptively stated "disbursement" payment to counsel for work done in his office at twice the rate charged by outside services with a profit?

Following our review of plaintiffs' arguments in light of the record on appeal and applicable precedent, we affirm.

I.

In or around November 2004, Gerald B. O'Connor, then a member of the law firm of O'Connor & Demas, met with the Schnitzers to discuss replacing a New York firm as counsel to them in a medical malpractice action against Daniel Smith, M.D. and the Hackensack University Medical Center. An agreement was reached, and a retainer agreement was executed that conferred upon the firm of O'Connor & Demas "the exclusive right to take all legal steps to enforce the said claim either by way of suit or settlement." The retainer agreement further provided that, upon obtaining a recovery and deducting "[t]he amount of expenses paid by the firm," O'Connor & Demas would be entitled to a contingency fee based upon the net amount remaining. The agreement also included the following statement:

The above contingent fee shall be computed on the net recovery arrived at by deducting from the gross recovery all expenses incurred in connection with the institution and prosecution of the claim, including expenses incurred in investigation, preparation and trial of the case, expenses for expert or other testimony, the cost of briefs and ...


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