YAAKOV BEILIN, M.D. v. NAGEL RICE & MAZIE, LLP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4758-05T24758-05T2

YAAKOV BEILIN, M.D.,

Plaintiff-Respondent,

v.

NAGEL RICE & MAZIE, LLP,

Defendant-Appellant.

____________________________________________________________

 

Submitted March 20, 2007 - Decided April 3, 2007

Before Judges Weissbard and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. DC-

023922-05.

Nagel Rice & Mazie, attorneys for appellants

(Bruce H. Nagel and Andrew L. O'Connor, on

the brief).

Respondent has not filed a brief.

PER CURIAM

This is a collection case. Defendant, Nagel Rice & Mazie, appeals from a final judgment in the amount of $5,950 entered in favor of plaintiff, Dr. Yaakov Beilin, following a bench trial in the Special Civil Part. We affirm.

Plaintiff was hired by defendant, a law firm, to serve as an expert witness in a medical malpractice case. In his complaint, plaintiff claimed that he was owed the sum of $5,950 "for 17 hours he worked in preparation for the Lybolt trial." According to Dr. Beilin, he was contacted by the law firm and asked to review various medical records. After concluding that there was evidence of malpractice, plaintiff agreed to serve as defendant's expert and to testify in court if necessary. Plaintiff testified that he worked closely with both Bruce Nagel and Rob Solomon, and his testimony included the following:

[H]e sent me materials to review, which I did. I told them that I charge $350 per hour for prep time and I charge $3500 per deposition or per trial regardless of how long that deposition and trial would take.

. . . And at the time of the deposition, I sent them a bill for my prep time, which at that time was 7 1/2 hours times $350, which is what the bill that you see there, roughly $2600. And additionally, I charged them [$]3500 for the day.

The day of the deposition, he gave me a check in hand for $3500, which I took with me. So, I never needed to send a bill for that. He just gave it to me. And I sent him this bill for the prep time, which he paid in full.

During the trial, Bruce Nagel testified that his firm had paid plaintiff the total sum of $15,625 for the following services:

1. $6,000 for plaintiff's time spent to review the file and to prepare an initial report in November 2002.

2. $2,625 for time spent preparing for his deposition.

3. $3,500 for plaintiff's deposition testimony in October 2003.

4. $3,500 for plaintiff's trial testimony in January or February 2005.

Nagel acknowledged, "Dr. Beilin would be charging us by the hour, $350 an hour, which was fine," and he was aware that plaintiff's fee for testifying was $3,500 because plaintiff was "on staff at Mount Sinai[,] New York," and he "has to take the day off anyway. Fine." Nevertheless, when Nagel received a statement in the amount of $5,950 for seventeen hours of preparation time for trial, he spoke to plaintiff:

I say, "Look. Your testimony was fine. You told me that you -- it would be [$]3500 for the trial date. That's fine." I said, "I assume it would include . . . a couple of hours of preparation time, which is fairly standard in a -- when I pay an expert for an hour -- for a day or half a day, I assume most of them include a couple of hours of preparation time." I said, "But I'm happy to pay you for some of the preparation time." I said, "But 17 hours, when you hadn't testified before on a single injection[,"] I said, ["]that is just not fair to me." And I said, "And in addition to that, we lost the case. It's cost my firm over $100,000 in out-of-pockets." I said, "So, I want you to consider two things: one, it was your first time on the stand; two, I think your 17 hours is really heavy-handed; and, number three, we took a blood bath in this case. And what I do with experts over the course -- I've been doing this almost 30 years is that where you take a huge loss, experts will virtually always work with you."

The trial court found that plaintiff "spent 17 hours preparing for the trial," and it concluded that plaintiff was entitled to be paid at the rate of $350 per hour "based upon the agreement of the parties." The trial court rejected defendant's argument that plaintiff could not succeed without "an expert to say that the time was reasonable and the rate was reasonable."

On appeal, defendant contends "expert testimony was required to establish the claim for unpaid expert fees." But defendant candidly concedes "there appears to be no case directly addressing this precise issue." In our view, the trial court correctly concluded it was not necessary for plaintiff to present expert testimony regarding the reasonableness of his charges because plaintiff was entitled to payment in accordance with the parties' oral contract.

We conclude from our review of the record that the trial court's findings are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). And the trial court's legal conclusions, predicated on those findings, are consistent with controlling legal principles. Accordingly, we affirm substantially for the reasons stated by Judge Davidson on May 2, 2006.

Affirmed.

 

Improperly plead as Nagel Rice Dreifuss & Mazie, LLP.

(continued)

(continued)

5

A-4758-05T2

April 3, 2007