Fee dispute in 2004 suit against Rosewood Care Center erupts

Amelia Flood Apr. 29, 2010, 4:45am



A fee dispute between an Edwardsville nursing home and the attorneys who won a $58,000 verdict against it three years ago got off to a contentious start Wednesday as counsel for both sides sparred over costs.

Madison County Circuit Judge Dennis Ruth also chided both attorneys for failing to reach agreements and for failing to work out specific objections before coming before him.

"We all just said we're going to dump it in the judge's lap," Ruth said. "Without narrowing the issues, we're going to have to prove up every little thing."

Defendant Rosewood Care Center of Edwardsville objects to nearly $176,000 in billable hours and $27,000 in costs that the attorneys for plaintiffs Thomas Schwab and Donna Heal have asked that they pay under the Nursing Home Care Act.

The evidentiary hearing will be held May 27 at 9:30 a.m.

The dispute stems from the 2007 trial of the suit, a trial that lasted 11 days that October.

The jury returned a verdict of $58,878.53 for the plaintiffs.

Schwab and Heal sued as the administrators of Margaret Schwab's estate, claiming that the nursing home's negligence led Margaret Schwab to fall and injure herself while she was a patient at the Edwardsville home.

After the verdict, Thomas Schwab's attorneys asked the appellate court for a new trial.

The Fifth District Appellate Court in Mount Vernon denied the request and upheld the Madison County jury verdict.

Ruth inherited the case from former Madison County Circuit Judge Nicholas Byron.

McCubbin entered the case just before trial as Rosewood's in-house counsel. The nursing home had previously been represented by Stephen Strum and Jeffrey Dunn of Sandberg, Phoenix and von Gontard P.C. of St. Louis.

That representation factored into Wednesday's hearing when Ruth inquired as to what Rosewood's former counsel was paid.

According to McCubbin, Rosewood's previous attorneys initially billed his client for $300,000. That amount was later dropped to $200,000.

In response to the information, Ruth questioned Rosewood over its insistence that the plaintiffs' attorneys, Craig Jensen and Lance Mallon, were charging too much by asking for $176,000 in fees.

"On the face of it, the $176,000 billing would seem reasonable," Ruth said. "You can spin a lot of wheels and a lot more time figuring out how they spent the time."

McCubbin objected to the plaintiffs' attorneys' request, arguing that they had not provided detailed accounts of what they did with their time. He claimed he could not determine what costs were reasonable without that information.

"I don't think it's fair to make the defendant do all that work when it's the plaintiff's burden to prove his hours," McCubbin said. He cited the six amended complaints that his client had to answer in the case as another instance of unnecessary attorney work.

"How many complaints is the defendant supposed to pay for?" he said.

McCubbin also had objections to the $176,000 in fees and $27,000 in costs based in legal grounds.

Ruth did not address those issues at Wednesday's hearing, saying he would take those up at the evidentiary hearing later next month.

As an example, he cited an instance when the plaintiffs' counsel claims to have billed 15 hours on a Saturday. He also objected to Mallon's presence with Jensen at depositions, alleging that the case didn't require that many attorneys.

McCubbin argued the fees were unreasonable.

"It's a very simple case," he said.

"A very simple 11 day trial," Jensen retorted.

After Ruth ordered both attorneys to take an hour to sort out what specific objections there were, Jensen told the judge that they had agreements on "about 60 percent" of the issues.

The plaintiffs are represented by Jensen, Mallon and Elizabeth Parker.

Rosewood is represented by McCubbin and Christy Eckhardt.

The case is Madison case number 04-L-413.

More News