MICHAEL MADALINSKI, Indiv. and as Special Adm‘r of the Estate of Carol Madalinski, Deceased, Plaintiff-Appellant, v. ST. ALEXIUS MEDICAL CENTER, Defendant (Monico, Pavich and Spevack, Petitioner-Appellant).
No. 1—04-3350
First District (6th Division)
December 15, 2006
369 Ill. App. 3d 547
Affirmed.
FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.
Robert J. Pavich and Melanie K. Fairman, both of Monico, Pavich & Spevack, and Steven J. Seidman, of Seidman Law Offices, both of Chicago, for appellant.
No brief filed for appellee.
Plaintiff-appellant Michael Madalinski was represented by
BACKGROUND
A stipulation was entered into and included in the record on appeal between Madalinski, by and through Monico, and St. Alexius agreeing that St. Alexius would not file a brief and would otherwise have no part in this appeal. Thus, we consider the instant appeal on Madalinski and Monico‘s brief only, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
Monico presented the following evidence at the hearing on its petition for fees. In October 2001, approximately one month prior to the expiration of the statute of limitations, Madalinski retained Monico to determine if he had a viable claim against St. Alexius for the death of his wife. Two other law firms had previously rejected Madalinski‘s case. Monico conducted an expedited review and, after consulting with experts, determined that the case had merit but that it would be vigorously defended. Monico explained this to Madalinski, along with the fact that existing commitments would require an extraordinary effort on the firm‘s part in taking his case. For example, Robert Pavich, who would be the primary attorney on Madalinski‘s case, had been assigned by the United Nations War Crimes Tribunal for the Former Yugoslavia as consulting and lead counsel in several matters, requiring a three- to six-year commitment in Europe. Thus, Monico was in the process of opening an international office there and staffing it with some of its paralegals, resulting in a reduced number of cases the firm could accept in the United States.
After quickly gathering evidence to support Madalinski‘s claims, Monico timely filed a lawsuit on his behalf, as well as on behalf of his and decedent‘s minor children, containing counts pursuant to the
During discovery on the case, Pavich was often required to leave his post in Europe to return and participate in the litigation. Some 45 discovery depositions were taken by both parties, mainly of medical personnel. Pavich returned to take or defend depositions of the treating physicians, as well as eight liability expert depositions. In addition, St. Alexius produced lengthy manuals and protocols outlining its procedures and policies, which attorneys at Monico spent weeks reviewing. The firm filed a motion to compel an incident report and peer review findings, which required briefings, hearings and several depositions. In preparing Madalinski‘s side of the case, Monico retained four liability experts and one damages expert. Two of these experts resided out of state. The firm consulted at length with all these experts to form opinions on the case. Monico prepared the experts for trial, discussed with them their thoughts on St. Alexius‘s position, and reviewed with them medical literature relied upon by both parties’ experts during depositions. Prior to trial, Monico initiated mediation between the parties; two all-day mediations were conducted for which the firm prepared extensive submissions. Neither mediation, however, resulted in an offer by St. Alexius.
The cause proceeded to a jury trial, which lasted from June 21, 2004, to July 8, 2004. Monico defended against at least 27 motions in limine filed by St. Alexius, while also filing several such motions on behalf of Madalinski. The firm called 20 witnesses to testify, including 6 medical witnesses via evidence deposition, one of which had required the parties to travel out of state. Meanwhile, Monico participated in settlement negotiations with St. Alexius throughout the trial, culminating in a high-low agreement after the case was submitted to the jury of $2 million to $5,750,000. The jury returned a verdict in favor of Madalinski and against St. Alexius for $12,407,572. According to the high-low agreement, Madalinski accepted a settlement of $5,750,000 for him and his minor children.
Monico filed a petition with the trial court to approve the settlement and for attorney fees in the amount of one-third of the gross settlement, or $1,916,666.67, pursuant to
At the hearing on Monico‘s motion to reconsider, the court admitted that subsection (c) of
ANALYSIS
“(a) In all medical malpractice actions the total contingent fee for plaintiff‘s attorney or attorneys shall not exceed the following amounts:
33 1/3% of the first $150,000 of the sum recovered;
25% of the next $850,000 of the sum recovered; and
20% of any amount recovered over $1,000,000 of the sum recovered.
***
(c) The court may review contingent fee agreements for fairness. In special circumstances, where an attorney performs extraordinary services involving more than usual participation in time and effort the attorney may apply to the court for approval of additional compensation.”
735 ILCS 5/2—1114 (West 2002) .
As Monico and the trial court in the instant case both acknowledged, Clay is the preeminent case regarding
The reviewing court held that the trial court had not abused its discretion in its holding and, thus, it would not award Slutsky a one-third fee. See Clay, 325 Ill. App. 3d at 901. Beginning with an analysis of
“(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.”
134 Ill. 2d R. 1.5 .
See also Clay, 325 Ill. App. 3d at 902, quoting Chicago Title & Trust Co. v. Chicago Title & Trust Co., 248 Ill. App. 3d 1065, 1072 (1993) (“’ [i]n assessing the reasonableness of fees, the trial court should consider a variety of factors, including the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation’ “).
Applying the criteria for attorney fees found in Rule 1.5 to Slutsky‘s assertions, the Clay court noted that while he had presented extrinsic submissions bearing upon several of these factors, many others had no factual support and, accordingly, the balance of factors did not exhibit an abuse of discretion on the part of the trial court in refusing to award him a one-third fee. See Clay, 325 Ill. App. 3d at 902-03. Slutsky did not provide any evidence regarding his skill and reputation, the usual and customary charge for the same services, or other similar instances where fees were increased to one-third. See Clay, 325 Ill. App. 3d at 902-03. Moreover, while he presented six affidavits attesting to the novelty and difficulty of and time he spent on the cause, the Clay court found them to be “largely conclusory and without itemization or detail.” Clay, 325 Ill. App. 3d at 902. Neither Slutsky nor the affiants ever described or specified how Slutsky spent all the time he claimed he worked on the cause, how many doctors he contacted, how much time he expended with experts or how he arrived at his theories. See Clay, 325 Ill. App. 3d at 903. Moreover, although Slutsky obtained a favorable settlement, his skills were never tested at a trial. See Clay, 325 Ill. App. 3d at 903. Ultimately, the Clay court acknowledged Slutsky for his efforts and the settlement he helped obtain but, while stating that it perhaps may not have reversed a one-third fee had the trial court awarded one, it concluded that it would not increase the fee since there was nothing in the record to indicate that the trial court had abused its discretion in reaching its award. See Clay, 325 Ill. App. 3d at 903-04; see, e.g., Ruiz, 366 Ill. App. 3d at 956 (finding no abuse of discretion on part of trial court where reviewing court likewise “[could not] find that” services rendered “were so extraordinary that an enhanced fee [was] proper“).
In addressing the first contention, we note that Monico, citing South Suburban Safeway Lines, Inc. v. Regional Transportation Authority, 166 Ill. App. 3d 361, 365 (1988), insists on a de novo standard of review, as it claims that the trial court failed to use any discretion in considering the fee petition. Specifically, the firm argues that the trial court “fundamentally misconstrued the statute” by declaring that the fee in Madalinski‘s case was dictated by subsection (a) of
While it is true that the trial court awarded fees only under
From all this, we cannot conclude, as Monico would have us, that the trial court completely ignored the evaluating factors announced in Clay. Simply put, the record clearly contradicts this. Accordingly, the firm‘s assertion that the court wholly failed to exercise its discretion in considering its petition for extraordinary fees is incorrect.
However, this is not the end of our discussion. Although we find that the trial court did use its discretion in evaluating Monico‘s fee petition and motion to reconsider, we must still address the firm‘s alternative contention; that is, we must examine whether, as Monico asserts, the court abused that discretion in considering the Clay factors as they relate to the instant case and in ultimately denying its petition for enhanced fees based on its conclusion that Monico did not render extraordinary services. It is on this point that we agree with the firm and find that Monico provided extraordinary services in litigating Madalinski‘s case, meriting reconsideration of its fee petition under
As noted, abuse of discretion is the proper standard to be applied when an appellate court is called upon to review a judicial award of attorney fees. See Clay, 325 Ill. App. 3d at 899 (discussing legal reasoning and past case law to arrive at this conclusion as a matter of first impression, noting that this determination is a qualitative rather than quantitative one in which trial court is to apply own knowledge and
Monico presented the trial court with various submissions addressing each of the Clay factors used to evaluate fee petitions. Regarding the first factor of time, labor and difficulty, Monico asserts it expended some 2,000 hours working on Madalinski‘s case. While the firm has not detailed how it spent these hours via “official” time sheets, it has included in the record a copy of its “costs advanced” sheets which, though primarily highlighting the costs associated with the case, also chart what the firm did (i.e., depositions, filings, record reviews) on what particular days. Most significantly, these sheets provide the names of the various witnesses and medical experts Monico contacted, worked with and deposed. While perhaps not the best evidence to demonstrate the time and labor allocated in a case, the sheets do verify Monico‘s assertions that it deposed some 45 witnesses, conducted lengthy expert (four liability and one damages expert, two of which resided out of state) and written (hospital manual and protocol review, requiring further depositions) discovery, participated in two all-day mediations, and prepared for trial. Moreover, as further evidence of its labor and the intricacy of the underlying case, Monico called 20 witnesses at trial and presented medical expert testimony via 6 evidence depositions, one of which required an out-of-state visit. The trial lasted some 2 1/2 weeks.
As soon as Monico accepted Madalinski‘s case, the firm dealt with the next Clay factor of the likelihood of acceptance precluding other employment. Monico informed Madalinski even before taking his case that Pavich, the lead attorney who would be working on it, had just been assigned by the United Nations War Crimes Tribunal to work in Europe for three to six years. Monico further explained that the firm was in the process of opening an international office and transferring some of its staff to Europe as well. Though it would accept the case, Monico made certain that its new client understood it was reducing its number of cases overall because of this and that the instant case would require a lot of effort because it would be vigorously defended by the opposing party.
In addressing the next factor of the fee customarily charged for such a case, Monico presented the trial court with documents from two prior cases in which the firm was involved. Both of these, like Ma-
Regarding the amount involved and the results obtained in this case, we note that following two all-day mediations, the hospital made no offer to Madalinski. Yet, at the close of trial, Monico was able to secure a high-low agreement of between $2 million and $5,750,000. And most interestingly, the jury returned a verdict of $12,407,572. Monico, thus, was able to secure the high end of the agreement for Madalinski and his children, a sizeable settlement especially in light of the fact that two other firms had reviewed and then declined to take his case. Also significant is that the firm was able to negotiate a settlement; this meant no posttrial motions or appeals jeopardizing or delaying Madalinski‘s award. Clearly, Monico obtained optimal results with the work it performed, with even the trial court here acknowledging that Madalinski was undoubtedly satisfied.
These results are even more impressive when the time limitations surrounding this case are considered. Madalinski did not present the case to Monico until there were only a few weeks left before the expiration of the statute of limitations on the claim. In addition, as noted earlier, Madalinski approached Monico at a time when the firm was expanding to Europe, it was decreasing the number of cases accepted, and one of its primary attorneys, the one who would be assigned to the case, was required to work overseas on international matters for three to six years. In spite of this, Monico was able to conduct an expedited review of Madalinski‘s case and find, in a very short amount of time, substantive legal evidence through its consultations with experts to form the bases of viable claims—something two previous law firms could not. Not only was Monico able to timely file the suit, but it was able to do so on behalf of both Madalinski and his minor children and include claims other than wrongful death, such as counts involving the
Regarding the remaining Clay factors, Monico demonstrated to the trial court that it had built a relationship with Madalinski that has lasted approximately four years and while the majority of it encompassed preparing him and his children for this trial, the firm also helped the family in other legal matters. Moreover, the affidavits Monico provided in this case from longtime medical malpractice attorneys Fetzer and Gifford provided worthy insight into the firm‘s experience, reputation and abilities. This is because Fetzer and Gifford observed firsthand Monico‘s conduct and preparation at the two all-day mediations. Fetzer and Gifford, having become quite familiar with the case, both attested that the firm invested an extraordinary amount
Upon review of all these factors, one may argue that the submissions in the instant case are similar to those of attorney Slutsky in Clay and, thus, that the same result should be reached; that is, that Monico does not merit additional fees under
The significant difference in the instant case is that the trial court here, after employing the criteria the Clay court used to determine the propriety of Slutsky‘s award, held that Monico did not perform extraordinary services in Madalinski‘s medical malpractice case. Yet, based on our review of the factors, it is clear to us that the firm did indeed perform these services, particularly when Monico‘s submissions for its additional fee petition are compared to Slutsky‘s. The
Monico‘s situation, however, is in direct contradiction to Slutsky‘s. Unlike that attorney, Monico demonstrated the firm‘s skill and standing in the community by submitting documents showing that its lead attorney had been hand-selected by a committee of the United Nations to lead and consult on international projects in Europe. Monico‘s employees are also well versed in medical situations, having a registered nurse/attorney on staff whose experience and knowledge proved vital to Madalinski‘s case. Moreover, unlike Slutsky, the firm provided the trial court with two other medical malpractice cases similar to Madalinski‘s on which it worked (i.e., also involving surviving spouses and children), wherein its fees were increased to one-third of the recovery. While Monico, like Slutsky, failed to attach an “official” time sheet outlining the hours of its work in this case, the record does contain a list of its costs advanced which clearly details, unlike Slutsky‘s submissions, all the doctors and experts the firm contacted as well as all the activities it performed on Madalinski‘s behalf to prepare his case. Significantly, though the ultimate conclusion of this case was a settlement, Monico‘s skill and mastery of the difficulties of this case, unlike Slutsky‘s, were tested at a trial that lasted almost three weeks and would have obtained a huge jury award for Madalinski.
In addition to this, it cannot be forgotten that Monico took Madalinski‘s case with only a few weeks left before the expiration of the statute of limitations, and two previous firms had refused to take the case because they could not substantiate any viable claims. Monico was able to conduct an expeditious review, complete with experts, and timely file the case to include the minor children and multiple counts of liability. The firm then took the case all the way to trial, all while
It is our view that if, based on the facts of Clay, that trial court found that Slutsky warranted an enhanced fee for extraordinary services and awarded him accordingly under
Therefore, having found that Monico performed extraordinary services on behalf of Madalinski in the underlying medical malpractice case, we believe the best course of action is to remand this case to the trial court to reevaluate the firm‘s additional fee request pursuant to
CONCLUSION
Accordingly, for all the foregoing reasons, we reverse the judgment of the trial court and remand this cause for further proceedings pursuant to our decision.
Reversed and remanded.
MCNULTY, J., concurs.
JUSTICE O‘MALLEY, dissenting:
I respectfully dissent from the majority opinion. I would not send the case back for reconsideration but would affirm the trial court‘s
First, in my view, there is no reason to send this case back pursuant to any subsection of
The majority acknowledges, and I agree, that the standard which applies here is an abuse of discretion. Thus, if we were to reverse the trial court‘s decision as to exceptional circumstances or the lack thereof, we would have to find that no reasonable court could have reached the same conclusion. Clay v. County of Cook, 325 Ill. App. 3d 893, 901, quoting Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1979) (“’ [a]n abuse of discretion occurs when no reasonable person would agree with the position adopted by the trial court’ “). While as a reviewing court, we may have reached a different conclusion, it is axiomatic that we should not substitute our judgment for that of the lower court, because it is almost always in a better position to assess the circumstances. See In re Marriage of Samardzija, 365 Ill. App. 3d 702, 708 (2006) (“Under the abuse of discretion standard, the question is not whether this court might have decided the issue differently, but whether any reasonable person could have taken the position adopted by the trial court“).
In reviewing the evidence presented regarding the number of depositions, motions in limine, a single mediation and other work performed, this very experienced trial judge reached the conclusion that there was nothing out of the ordinary. Viewing the same evidence, I cannot say that no reasonable person could have reached this conclusion. Medical negligence cases routinely, or as a matter of course, require an enormous commitment in terms of time and money for lawyers who handle them. The lawyers presumably know this at the outset. In this case, the number of depositions, 45, and motions in limine, 29, and the length of the trial, 2 1/2 weeks, among other things, do not appear to be extraordinary for this type of litigation. In fact, the numbers in other cases are often well in excess of those documented in this case.
The only unusual thing here is that a partner who had European
However, the client in this case signed a contract agreeing to pay the firm “one-third of the gross sum recovered.” No one, including the client, has challenged that. The supreme court has held that contingent fee agreements are appropriate so long as they are reasonable. Leonard C. Arnold, Ltd. v. Northern Trust Co., 116 Ill. 2d 157 (1987). One might speculate that the client was under some pressure to agree to a larger fee where his case had been declined by several other law firms and the statute of limitations was running imminently. An equally reasonable speculation is that the client was absolutely delighted to have found someone to champion his cause. However, this is pure speculation and there is no allegation or even suggestion here that this contract was not absolutely voluntary or that it was not reasonable. Therefore, I would reverse and award the additional fees requested by the law firm on the basis of this valid contract.