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Monday, August 19, 2019

Widow loses out on $6M verdict; Attorneys fees can't be recovered on top of $1M agreement

By Dee Thompson | Mar 3, 2017

TRENTON, N.J (Legal Newsline) – An appellate court rejected a New Jersey widow’s request for attorneys fees on Feb. 16, stating it was not part of an agreement negotiated by her attorneys that cost her a $6 million verdict.

In the case of Serico v. Rothberg, a medical malpractice case, a jury's $6 million verdict was reduced to only $1 million because of a high-low agreement negotiated by the attorneys. A three-judge appellate court panel decided that the $1 million did not include attorneys fees.

The case has been pending for years. Lucia Serico’s husband, Benjamin Serico, filed suit against Dr. Robert M. Rothberg in 2011 in Essex County Superior Court for medical malpractice, claiming a failure to diagnose colon cancer. Benjamin Serico died during the litigation, but his widow continued the case on behalf of herself and the estate.

Before the case went to trial, Lucia Serico offered to settle for $750,000. However, Rothberg didn’t respond. The trial commenced and while awaiting the jury’s verdict, the parties entered a high-low agreement specifying an amount of at least $300,000 but capping the award at $1 million. The jury came back with an award of $6 million.

The parties placed the award on record without mentioning any award of attorneys fees. Rothberg’s lack of response to the earlier offer of judgment for $750,000 left the question open.

The appellate panel noted “The parties' high-low agreement made no mention of the effect of defendant's rejection of plaintiff's offer of judgment that, absent the high-low agreement, entitled plaintiff to an award of counsel fees and other remedies based upon the amount of the judgment entered after the jury's verdict.”

The appellate court ruled against Serico because her attorney “never mentioned the offer of judgment during the high-low agreement's negotiations or expressed any intention of preserving his client's right to attorney's fees and costs under the rule,” according to the decision.

The court did not rely upon the trial court judge’s experience in making the decision to deny attorney’s fees to Serico, stating in its decision, “He [the judge] also stated that he 'conferred with several colleagues who have had similar experiences' and they informed him that successful parties who entered into high-low agreements rarely, if ever, made an application for fees under the rule, and, in the rare instance when they did, the motion was denied.”

Rather, the appellate court found that at the time Serico’s attorneys were negotiating the high-low agreement, they didn’t state an intention to pursue attorney’s fees.

In its opinion, the court concluded: “Because the jury's verdict here was in excess of the high, the trial court correctly rejected plaintiff's claim and limited plaintiff's recovery to $1 million, including all fees and costs to which she might have been entitled.”

Robert H. Solomon, Bruce H. Nagel and Bradley L. Rice of Nagel Rice LLP represented Serico. James B. Sharp and Benjamin Hooper of Schenck Price Smith & King LLP represented Rothberg.

Solomon maintains that they will appeal to the Supreme Court of New Jersey because the burden was on defendant’s attorneys to get a waiver of the offer of judgment sanctions during the high-low negotiations, according to a Law360 article.

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U.S. Superior Court of New Jersey - Essex County