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Kane v. Shapiro, Rosenbaum, Liebschutz & Nelson, LLP

Supreme Court of New York, Onondaga County

January 23, 2013

Peter B. KANE, M.D., Plaintiff,

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

James D. Lantier, Esq., Smith, Sovik, Kendrick & Sugnet, P.C. of Counsel, for Plaintiff.

Sanford R. Shapiro, Esq., Boylan, Brown, Code, Vigdor & Wilson, LLP of Counsel, for Defendant.


This action was commenced by the filing of the Summons and Complaint on July 15, 2005 wherein Plaintiff seeks from Defendant the sum of $5460.80 representing the balance allegedly due to Plaintiff for the rendering of his professional expert services to Defendant in conjunction with the law suit of WILDMAN v. MEHR, et al. Defendant interposed an Answer and asserted a counterclaim against Plaintiff for the amount of $100,000 that Defendant allegedly lost as a result of the reversal of Plaintiff's expert testimony in the WILDMAN case.

Subsequent to numerous pretrial discovery proceedings, motions and an appeal over the furnishings of a portion of the trial transcript in the underlying WILDMAN action, this matter came on to be heard by the Court. During the course of the trial, the Court had the unique opportunity to listen to the testimony; review the exhibits (including the verdict sheet and portions of the trial transcript of the underlying WILDMAN action); and assess the demeanor and credibility of the witnesses. Based on this unique opportunity, the Court renders its Decision.

In April 2004, Defendant retained Plaintiff as its anesthesiology expert in conjunction with the medical malpractice action of WILDMAN v. MEHR, et al, scheduled to be tried in Monroe County in May 2004. Based on the record, it appears that this malpractice case was to be tried by attorney SANFORD R. SHAPIRO, of counsel to Defendant on behalf of Plaintiff WILDMAN. It further appears that shortly before the trial date, MR. SHAPIRO'S original anesthesiology expert unexpectedly backed out due to alleged problems with the American Society of Anesthesiologists, thereby causing the sudden and hasty retention of Plaintiff as his expert.

Upon conferring with MR. SHAPIRO, Plaintiff advised him that he would testify as an expert and his fee arrangement was as follows: $250 per hour for chart and record review, review of pre-trial materials and research; $350 per hour for any deposition testimony; and $2500 per day for trial testimony. This fee arrangement was accepted by MR. SHAPIRO on behalf of Defendant and there was no limitation by him as to the number of hours. This agreement was completely verbal and neither party reduced this agreement to a written instrument.

Thereafter, Plaintiff and MR. SHAPIRO conferred on at least two occasions to review the file and discuss theories of liability, direct and cross examination, etc. Up through their second conference, Plaintiff was given an initial retainer of $500, an additional payment of $750, and $2500 for one day's testimony, for a total of $3750. This sum satisfied Defendant's obligation to Plaintiff for review services up to April 21, 2004 (see Trial Ex. 2) and his trial testimony. This sum was not advanced by Defendant on behalf of MRS. WILDMAN. It was paid to Defendant by her, and Defendant advanced it to Plaintiff.

Between April 21, 2004 and May 17, 2004 when Plaintiff testified in the WILDMAN trial, Plaintiff spent an additional 21.5 hours comprised of file review, medical record review, medical research, and conferring with MR. SHAPIRO. At $250 per hour, this would translate to $5375 as reflected in Trial Ex. 3.

Plaintiff was retained by Defendant to provide expert medical testimony concerning three issues: first, informed consent; second, techniques utilized by the anesthesiologists on MRS. WILDMAN; and third, the quality of the post operative care provided to MRS. WILDMAN and its deviation from accepted standards. On May 18, 2004 Plaintiff testified. However, his testimony was categorized by MR. SHAPIRO as an " unexpected reversal of expert opinion", which categorization will be addressed hereinbelow with Defendant's counterclaim. The WILDMAN case was " no caused" .

Plaintiff submitted a final bill to Defendant for his services on May 21, 2004 in the amount of $5460.80. See Trial Ex. 3. This bill was ignored by Defendant. Plaintiff subsequently sent Defendant two follow-up bills dated July 26 and August 26, 2004. See Trial Ex. 4. These follow-up bills were likewise ignored by Defendant until August 31, 2004.

By correspondence to Plaintiff dated August 31, 2004 Defendant advised Plaintiff that it would not honor his final bill. See Trial Ex. 1. In this correspondence Defendant based its refusal to pay on the allegation that the amount was excessive, unfair and over what was anticipated. There was no mention that his testimony in some manner was related to the jury verdict no causing MRS. WILDMAN'S claim.

Thereafter, Plaintiff filed suit seeking his final payment of $5460.80. Defendant answered and counterclaimed for $100,000 on the basis that Plaintiff's unexpected reversal of expert opinion substantially caused the no cause of the WILDMAN ...

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