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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 case, thereby depriving Defendant of a $100,000 contingency fee.

Addressing Plaintiff's first cause of action, based on the entire record before the Court, the Court finds that the oral agreement between the parties contains all of the elements and requirements of a valid and enforceable contract. A contract is formed when two parties with legal capacity to enter into a contract give their mutual assent to the terms of a contract and there is consideration. MAAS v. CORNELL UNIVERSITY, 92 N.Y.2d 87 (1999).

Based on the record before the Court, Plaintiff has shown by the requisite quantum of proof that the parties entered into a valid oral contract; that Plaintiff performed the expert services he was hired to perform; that $2500 per day for trial testimony, and the hourly rate of $250, and the number of hours expended by Plaintiff were fair and reasonable; and, that Defendant breached said oral agreement by refusing to pay Plaintiff the balance of due him under the contractual terms. Therefore, Plaintiff has plead and proved a cognizable cause of action for breach of contract and is entitled to recovery based on its terms. However, the Court finds that there was no evidence of any agreement by the parties to pay Plaintiff for any travel expenses to Rochester. Therefore, the balance to which Plaintiff is entitled to recover from Defendant is $5375.

As to Plaintiff's second cause of action, assuming arguendo that Plaintiff did not prove his breach of contract action, he would nonetheless be entitled to recover the sum of $5375 from Defendant. Based on the record before the Court, the $250 per hour fee quoted and agreed upon by the parties and the amount of work devoted to this engagement by Plaintiff were both fair and reasonable, and Defendant, other than the testimony of MR. SHAPIRO, offered no credible evidence to the contrary.

With regard to Defendant's counterclaim, it is totally without merit and based solely on speculation and sour grapes. Quite frankly, it is reprehensible that an attorney of MR. SHAPIRO'S stature would resort to pleading such a baseless and frivolous counterclaim. Not only did the assertion of this counterclaim waste the time, money and resources of the parties, it also wasted the time and resources of this Court and the Appellate Division in addressing the prior motions and appeal on a matter that should have been amicably and professionally resolved without the necessity of Court intervention.

While Defendant was retained on a contingency fee basis, Plaintiff certainly was not. MR. SHAPIRO represented Defendant throughout this entire matter and testified on behalf of Defendant at trial in narrative form. Unfortunately, while dignified, professional and articulate in his narrative testimony, this gentleman turned out to be his own worst adversary.


offered no reasonable basis on which to predicate a contingency fee of $100,000. Nowhere in this record is there a non speculative basis upon which to evaluate the worth of MRS. WILDMAN'S cause of action. In addition, while Defendant's counterclaim alleges that Plaintiff's unexpected reversal of expert opinion was a substantial factor in the adverse outcome of the WILDMAN case, Defendant, through MR. SHAPIRO'S narrative testimony or any other source, presented absolutely no proof to support this allegation.

Moreover, based on the record, it appears that the alleged reversal of Plaintiff's expert opinion was not a reversal of Plaintiff's pre-trial opinion, but rather an honest and forthright response to MR. SHAPIRO'S questions concerning post operative treatment and whether MRS. WILDMAN should have been given the choice of having an esophagram if available at either of the two hospitals (Lattimore or Strong). See Trial Ex. 14 pp. 21-23.

Contrary to MR. SHAPIRO'S assertion, he was not fobbed off' by Plaintiff's testimony. Plaintiff, in fact, testified that the Defendants in WILDMAN provided substandard post operative care (See Trial Ex. 14 pp. 20-22), the only discrepancy appears to be the timing when an esophagram should have been performed. This discrepancy was due to the form of MR. SHAPIRO'S question, not any reversal of Plaintiff's expert opinion. Also, it is evident from the WILDMAN trial transcript of Plaintiff's testimony (Ex. 14) and MR. SHAPIRO'S narrative trial testimony at pages 121-124 that MR. SHAPIRO did nothing to attempt to " rehabilitate" Plaintiff's testimony that he perceived as damaging.

Finally, based on Court's Ex. 1 and MR. SHAPIRO'S trial testimony, it appears that he did not request a jury charge and/or verdict sheet question as to whether or not the post operative care provided to MRS. WILDMAN deviated from acceptable medical standards. And, based on Trial Ex. 12 pp. 2-3, it further appears that MR. SHAPIRO consented to the verdict being delivered without MRS. WILDMAN being present, did not request that the jury be polled and did not make any oral or written post trial motions to set aside the verdict.

A party cannot avoid the payment of its expert's fees on the basis of an unfavorable result after trial or on the basis of dissatisfaction with the expert's testimony. ANDREE v. WINTHROP UNIVERSITY HOSPITAL, 277 A.D.2d 265 (2nd Dept.2000); PORITZKY v. TANGREDI, 193 Misc.2d 286(2002). This is exactly what Defendant attempted to accomplish through its counterclaim, and such attempt is improper and unsustainable.

Therefore, on the basis of the foregoing, Defendant's counterclaim is dismissed.

To recapitulate, Plaintiff is entitled to recover from Defendant on his first cause of action for breach of contract in the amount of $5375, and Defendant's counterclaim is dismissed.


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