Appellate court awards three times jury verdict in Rosewood case

Steve Korris Sep. 21, 2011, 7:36am


MOUNT VERNON – Lawyers often collect a third of a verdict, but appellate judges turned the tables to award LakinChapman lawyers three times a verdict.

On Sept. 9, they affirmed Madison County Circuit Judge Dennis Ruth in approving $175,548 in fees on a $58,878.53 judgment against Rosewood Care Center.

Craig Jensen and Elizabeth Parker of LakinChapman had signed up to represent the estate of Margaret Schwab for 40 percent, which would have meant a $23,200 fee.

Justices Stephen Spomer, Joseph Goldenhersh and James Wexstten found Ruth properly applied fee provisions in the national Nursing Home Act.

Spomer wrote that "proportionality of the attorney fee award to the amount of recovery is not determinative because to hold otherwise would be to undermine the legislative intent that the attorneys be compensated for all time reasonably expended on a case."

"Because the Act establishes a right to fees but is silent as to the manner in which those fees are to be computed, and its purpose is to encourage, where warranted, the bringing of lawsuits by nursing home residents and their representatives, we look to civil rights law for guidance on the computation of those fees, as such law also acknowledges the need for private sector enforcement of the laws," he wrote.

"While the existence of a contingency fee contract is a relevant factor to be considered in determining the reasonableness of attorney fees, such a contract should not place a ceiling upon fees recoverable by prevailing parties."

He wrote that "although the estate's attorneys appear to have dramatically overvalued the case, the damages to the decedent, as borne out by the actual award to the estate, was so small that the contingent fee would have been nominal and inadequate relative to the effort that such recovery entailed."

A portion of the fee would have belonged to the late Lance Mallon, who referred estate administrators Thomas Schwab and Donna Heal to LakinChapman.

Jensen and Parker sued Rosewood for pain and suffering, loss of enjoyment of life, emotional distress, and medical expenses.

They demanded $850,000 to settle, and Rosewood chose to defend itself at trial.

Jensen asked jurors for $1 million, but they awarded only medical expenses.

The suit required the equivalent of a lawyer working full time for more than a year.

Jensen and Parker billed 691 hours, and Rosewood lawyers billed 1,430 hours.

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