Matoesian awards $99,000 in attorney's fees in nursing home suit

Amelia Flood Jun. 2, 2010, 7:12am


The attorneys for the plaintiff in a 2004 negligence suit against an Alton nursing home took home $99,000 in fees Wednesday.

Madison County Circuit Judge Andreas Matoesian awarded, Doug Mendenhall, atttorney for Clifford Emons, the representative of a deceased nursing home patient's estate, the money after hearing arguments and testimony.

The defense led by Dennis McCubbin had argued that the award should be reduced based in part on the small verdict the plaintiff won last year. He argued a large award unfairly penalized his client, the former Rosewood Care Center of Alton. The center is now owned by Hovan Care Services.

Emons is named as the special administrator of the estate of Jane Schwartz.

Schwartz was a Rosewood patient on whose behalf Emons won a $20,000 verdict last year.

Schwartz had fallen at the Alton nursing home breaking a wrist and hip.

Emons filed suit after her death because the statute of limitations was pending according to statements made by Mendenhall Wednesday.

Mendenhall took over the case when Emons left his firm.

The jury awarded $5,000 on a negligence charge in the case and $15,000 for violations of the state's Nursing Home Care Act.

The jury in the September 2009 trial only considered the damages issue after Matoesian struck the defense's pleadings and directed the verdict in favor of Emons.

The plaintiff asked for $87,625.00 in fees, based off an hourly fee of $275. He also sought $11,943.82 in court costs.

Mendenhall and his co-counsel Laura Cole both took the stand to testify about their work.

Attorney Robert Gregory, a familiar face at the plaintiff's table in other suits against Rosewood, testified that in his experience the $275 an hour was not out of the ordinary in a nursing home case.

Gregory cited the complex, fact-heavy nature of the cases and the amount of discovery work.

McCubbin stressed in his arguments against the $99,000 fee that it would set a bad precedent to award such a high fee in a $20,000 verdict case.

He warned that plaintiffs would refuse to settle cases knowing that by dragging them out they could secure "outlandishly larger" attorney's fee awards.

McCubbin suggested under questioning by Matoesian that the attorney fee award should be trimmed to either the size of the verdict or at most twice that amount.

Matoesian ruled after hearing the testimony and arguments, awarding all but small amounts of the costs and fees asked for.

He cited the spirit of the Nursing Home Care Act and its provisions for fees that were meant to encourage attorneys to take the cases.

"It should not be based on a percentage," Matoesian said of the compensation.

McCubbin represents Rosewood.

Mendenhall and Cole represent Emons.

The case is Madison case number 04-L-535.

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