Madalinski v. St. Alexius Medical Center ( 2006 )

SIXTH DIVISION
December 15, 2006
No. 1-04-3350
MICHAEL MADALINSKI, Individually and as Special ) Appeal from the
Administrator of the Estate of Carol Madalinski, Deceased, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 01 L 13513
)
ST. ALEXIUS MEDICAL CENTER, )
)
Defendant )
)
(Monico, Pavich and Spevack, ) The Honorable
) Carol Pearce McCarthy,
Petitioner-Appellant). ) Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:
Plaintiff-appellant Michael Madalinski was represented by petitioner-appellant law firm
of Monico, Pavich & Spevack (Monico or firm) in a medical malpractice action he filed
individually and as special administrator of the estate of his deceased wife, Carol Madalinski,
against defendant St. Alexius Medical Center. Before a verdict was rendered, the suit settled for
$5,750,000. Thereafter, Monico petitioned the trial court for "extraordinary fees" in the amount
of one-third of the gross settlement pursuant to section 2-1114(c) of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-1114 (West 2002)). The court denied this request. The firm
now appeals, contending that the trial court misinterpreted section 2-1114. Monico asks that we
find that the court wholly failed to use its discretion, reverse its ruling and enter an order
approving the petition for a one-third fee or, alternatively, that the court abused its discretion and
No. 1-04-3350
reverse and remand the matter for further proceedings on the petition. For the following reasons,
we reverse and remand.
BACKGROUND
A stipulation was entered into and included in the record on appeal between Madalinski,
by and through Monico, and St. Alexius agreeing that St. Alexius would not file a brief and
would otherwise have no part in this appeal. Thus, we consider the instant appeal on Madalinski
and Monico's brief only, pursuant to First Capitol Mortgage Corp. v. Talandis Construction
Corp., 63 Ill. 2d 128, 133 (1976).
Monico presented the following evidence at the hearing on its petition for fees. In
October 2001, approximately one month prior to the expiration of the statute of limitations,
Madalinski retained Monico to determine if he had a viable claim against St. Alexius for the
death of his wife. Two other law firms had previously rejected Madalinski's case. Monico
conducted an expedited review and, after consulting with experts, determined that the case had
merit but that it would be vigorously defended. Monico explained this to Madalinski, along with
the fact that existing commitments would require an extraordinary effort on the firm's part in
taking his case. For example, Robert Pavich, who would be the primary attorney on Madalinski's
case, had been assigned by the United Nations War Crimes Tribunal for the Former Yugoslavia
as consulting and lead counsel in several matters, requiring a three- to six-year commitment in
Europe. Thus, Monico was in the process of opening an international office there and staffing it
with some of its paralegals, resulting in a reduced number of cases the firm could accept in the
United States.
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No. 1-04-3350
After quickly gathering evidence to support Madalinski's claims, Monico timely filed a
lawsuit on his behalf, as well as on behalf of his and decedent's minor children, containing counts
pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2002)), the Survival Act (755
ILCS 5/27-6 (West 2002)), and the Rights of Married Persons Act (Family Expense Act) (750
ILCS 65/0.01 et seq. (West 2002)).
During discovery on the case, Pavich was often required to leave his post in Europe to
return and participate in the litigation. Some 45 discovery depositions were taken by both
parties, mainly of medical personnel. Pavich returned to take or defend depositions of the
treating physicians, as well as eight liability expert depositions. In addition, St. Alexius
produced lengthy manuals and protocols outlining its procedures and policies, which attorneys at
Monico spent weeks reviewing. The firm filed a motion to compel an incident report and peer
review findings, which required briefings, hearings and several depositions. In preparing
Madalinski's side of the case, Monico retained four liability experts and one damages expert.
Two of these experts resided out of state. The firm consulted at length with all these experts to
form opinions on the case. Monico prepared the experts for trial, discussed with them their
thoughts on St. Alexius' position, and reviewed with them medical literature relied upon by both
parties' experts during depositions. Prior to trial, Monico initiated mediation between the parties;
two all-day mediations were conducted for which the firm prepared extensive submissions.
Neither mediation, however, resulted in an offer by St. Alexius.
The cause proceeded to a jury trial, which lasted from June 21, 2004, to July 8, 2004.
Monico defended against at least 27 motions in limine filed by St. Alexius, while also filing
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several such motions on behalf of Madalinski. The firm called 20 witnesses to testify, including
6 medical witnesses via evidence deposition, one of which had required the parties to travel out
of state. Meanwhile, Monico participated in settlement negotiations with St. Alexius throughout
the trial, culminating in a high-low agreement after the case was submitted to the jury of $2
million to $5,750,000. The jury returned a verdict in favor of Madalinski and against St. Alexius
for $12,407,572. According to the high-low agreement, Madalinski accepted a settlement of
$5,750,000 for him and his minor children.
Monico filed a petition with the trial court to approve the settlement and for attorney fees
in the amount of one-third of the gross settlement, or $1,916,666.67, pursuant to section 2-
1114(c) of the Code. The court approved the settlement but denied the firm's claim for fees,
finding that it was entitled to only $1,212,500, pursuant to section 2-1114(a) of the Code.
Monico filed a motion to reconsider. It attached two affidavits to this motion: one from Geoffrey
Gifford, a former president of the Illinois Trial Lawyers Association who had been a plaintiffs'
attorney specializing in medical malpractice cases for 27 years, and one from Brian Fetzer, a
fellow of the American College of Trial Lawyers and defense attorney specializing in medical
malpractice cases for 29 years. Gifford and Fetzer had conducted the all-day mediations in
Madalinski's case. Both Gifford and Fetzer averred that due to their medical malpractice
experience, they were familiar with the time and labor required by Monico in this case, as well as
the difficulty and novelty of the issues involved. They also stated that as mediators here, upon
reviewing the evidence and the "comprehensive submissions" prepared by the firm during this
litigation, "it became obvious that [Monico] had invested an extraordinary amount of time and
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No. 1-04-3350
effort during the discovery and pretrial stages of the case." Gifford and Fetzer further averred
that "this was a difficult case with a significant risk of a defense verdict" and that the issues had
been "vigorously contested." Their affidavits concluded by stating that the firm "demonstrated
an exceptional degree of skill, tenacity and perseverance throughout the pretrial, mediation and
trial phases," and that a one-third fee amount was customary and reasonable in such cases. In
addition, Monico attached a study to its motion to reconsider prepared by the American Bar
Association (ABA) detailing a decline in the number of civil jury trials and verdicts, which it
attributed to the complexity and length of these cases. Monico also presented a copy of the
attorney-client contract Madalinski had signed at the time he retained the firm detailing his
agreement to pay "a sum equal to one-third of the gross sum recovered" (emphasis in original), as
well as orders entered in two other medical malpractice cases Monico worked on awarding the
firm one-third fee amounts.
At the hearing on Monico's motion to reconsider, the court admitted that subsection (c) of
section 2-1114 of the Code does allow for "extraordinary fees." However, the court stated that it
had "looked at everything" the firm had presented and concluded that extraordinary fees were not
warranted here. The court "took into consideration" "all of the factors" espoused in Clay v.
County of Cook, 325 Ill. App. 3d 893 (2001), which, as cited by Monico in its petition, is the
preeminent case on this issue. It acknowledged that Monico had taken Madalinski's case on the
last day of the statute of limitations and that its attorneys worked on it while working full-time
outside the country, got the case to trial in just two years, won it, and did "a nice job." The court
also acknowledged that Madalinski had signed the one-third fee contract with the firm, and it
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No. 1-04-3350
considered the ABA article and affidavits attached to the firm's motion. Yet, upon reviewing all
this, the court found Madalinski's case was in "the bell curve for every medical malpractice case"
that had come before it, "neither at one extreme nor the other" in the context of difficulty. After
repeatedly stating that it "looked at everything" Monico had submitted, the court declared that its
fee petition was "wanting in relation to the requirements [the court] has to take into
consideration" in awarding extraordinary fees and that it "f[e]ll far short" of them. It noted that
there were "no huge amounts" of motions filed, no interlocutory appeals and no mistrials that had
to be retried. The court characterized the attached affidavits as "conclusory in nature" and found
the ABA study irrelevant. It further concluded that Monico had already received over $1.2
million in fees, and that Madalinski was now required to support his two minor children by
himself with the settlement. Based on this, the trial court denied the firm's motion to reconsider.
ANALYSIS
Section 2-1114 of the Code governs attorney fees in medical malpractice actions. See
735 ILCS 5/2-1114 (West 2002). It states, in relevant part:
"(a) In all medical malpractice actions the total contingent fee for
plaintiff's attorney or attorneys shall not exceed the following amounts:
33 1/3% of the first $150,000 of the sum recovered;
25% of the next $850,000 of the sum recovered; and
20% of any amount recovered over $1,000,000 of the sum recovered.
***
(c) The court may review contingent fee agreements for fairness. In
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No. 1-04-3350
special circumstances, where an attorney performs extraordinary services
involving more than usual participation in time and effort the attorney may apply
to the court for approval of additional compensation." 735 ILCS 5/2-1114 (West
2002).
As Monico and the trial court in the instant case both acknowledged, Clay is the
preeminent case regarding section 2-1114 and additional compensation in medical malpractice
actions. See Clay, 325 Ill. App. 3d 893; see also Ruiz v. City of Chicago, 366 Ill. App. 3d 947,
955-57 (2006) (reviewing Clay and reaffirming its principles). In Clay, a man was stabbed and,
during his treatment at the county hospital, he was rendered a quadriparetic. He retained
attorneys to represent him in a medical malpractice action against the county, but these attorneys
voluntarily dismissed the suit when they could not find an expert to testify that the county
deviated from the standard of care. The man then retained attorney Mark Slutsky, who was able
to find such and expert and settle the case for $3 million. Slutsky later filed a petition for
attorney fees reflecting "extraordinary services" pursuant to section 2-1114(c), beyond the
statutory maximum allowed under section 2-1114(a). Slutsky contended that the case had been
complex and difficult, that he spent an inordinate amount of time developing theories and
locating experts, and spent over 2,000 hours and $114,000 on the case. He told the court he was
faced with problems due to decisions by the client's former attorneys, had trouble finding the
doctors involved, and that key evidence (X-ray films) was lost, making his representation even
more difficult. He attached several affidavits to his petition for fees--from the client, opposing
counsel, an attorney who had voluntarily dismissed the case and three former judges--describing
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No. 1-04-3350
the difficulty of the case, the complexity of the issues and the time required, and all concluding
that Slutsky performed extraordinary services and deserved a one-third fee. The trial court found
that Slutsky had performed extraordinary services pursuant to section 2-1114(c) and awarded him
$138,000, more than the normal fee under section 2-1114(a) but less than one-third. Slutsky
appealed.
The reviewing court held that the trial court had not abused its discretion in its holding
and, thus, it would not award Slutsky a one-third fee. See Clay, 325 Ill. App. 3d at 901.
Beginning with an analysis of section 2-1114(c), the Clay court noted that the statute makes clear
with its permissive but not obligatory language that, even if a court finds the attorney performed
extraordinarily, it is not required to award him one-third; rather, it may conclude he is entitled to
one-third, more than one-third or less than one-third as compensation. See Clay, 325 Ill. App. 3d
at 901 (the "statute permits a range of awards for attorneys who perform extraordinary services
and not every award of additional fees will" be the same, as there is no specific entitlement or
limit). As a guideline, the Clay court determined that the criteria our state supreme court
enumerated in Illinois Supreme Court Rule 1.5 (134 Ill. 2d R. 1.5) to consider the reasonableness
of attorney fees in general would provide a proper review for additional compensation requests
under section 2-1114(c) as well. See Clay, 325 Ill. App. 3d at 902 (factors listed in Rule 1.5
which assist in determining the reasonableness of a general fee "may be utilized in evaluating fee
awards under the provisions of section 2-1114"). These evaluating criteria include:
"(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal services properly;
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No. 1-04-3350
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent." 134 Ill. 2d R. 1.5.
See also Clay, 325 Ill. App. 3d at 902, quoting Chicago Title & Trust Co. v. Chicago Title &
Trust Co., 248 Ill. App. 3d 1065, 1072 (1993) (" '[i]n assessing the reasonableness of fees, the
trial court should consider a variety of factors, including the skill and standing of the attorneys
employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of
responsibility required, the usual and customary charge for the same or similar services in the
community, and whether there is a reasonable connection between the fees charged and the
litigation' ").
Applying the criteria for attorney fees found in Rule 1.5 to Slutsky's assertions, the Clay
court noted that while he had presented extrinsic submissions bearing upon several of these
factors, many others had no factual support and, accordingly, the balance of factors did not
exhibit an abuse of discretion on the part of the trial court in refusing to award him a one-third
fee. See Clay, 325 Ill. App. 3d at 902-03. Slutsky did not provide any evidence regarding his
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No. 1-04-3350
skill and reputation, the usual and customary charge for the same services, or other similar
instances where fees were increased to one-third. See Clay, 325 Ill. App. 3d at 902-03.
Moreover, while he presented six affidavits attesting to the novelty, difficulty and time he spent
on the cause, the Clay court found them to be "largely conclusory and without itemization or
detail." Clay, 325 Ill. App. 3d at 902. Neither Slutsky nor the affiants ever described or
specified how Slutsky spent all the time he claimed he worked on the cause, how many doctors
he contacted, how much time he expended with experts or how he arrived at his theories. See
Clay, 325 Ill. App. 3d at 903. Moreover, although Slutsky obtained a favorable settlement, his
skills were never tested at a trial. See Clay, 325 Ill. App. 3d at 903. Ultimately, the Clay court
acknowledged Slutsky for his efforts and the settlement he helped obtain but, while stating that it
perhaps may not have reversed a one-third fee had the trial court awarded one, it concluded that it
would not increase the fee since there was nothing in the record to indicate that the trial court had
abused its discretion in reaching its award. See Clay, 325 Ill. App. 3d at 903-04; see, e.g., Ruiz,
366 Ill. App. 3d at 956 (finding no abuse of discretion on part of trial court where reviewing
court likewise "[could not] find that" services rendered "were so extraordinary that an enhanced
fee [was] proper").
Interestingly, in the instant case, while Clay is certainly applicable, it is not wholly on
point with the facts presented here. In Clay, the trial court had affirmatively held that Slutsky
performed extraordinary services in the underlying case; while the amount of additional fees to
be awarded was at issue, this portion of the decision was never challenged in, or questioned by,
the reviewing court. See Clay, 325 Ill. App. 3d at 896. In contrast, the instant case raises this
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No. 1-04-3350
very issue, as the trial court here held that Monico did not perform extraordinary services in
Madalinski's case. Thus, the firm asserts alternative contentions for its claim that the trial court
misinterpreted section 2-1114 in evaluating its petition for fees: either that the court did not
exercise its discretion by completely ignoring the factors to be used to determine extraordinary
fees as outlined in Clay, or that the court exercised its discretion but abused it in evaluating the
factors and ultimately denying additional fees under subsection (c).
In addressing the first contention, we note that Monico, citing South Suburban Safeway
Lines, Inc. v. Regional Transportation Authority, 166 Ill. App. 3d 361, 365 (1988), insists on a de
novo standard of review, as it claims that the trial court failed to use any discretion in considering
the fee petition. Specifically, the firm argues that the trial court "fundamentally misconstrued the
statute" by declaring that the fee in Madalinski's case was dictated by subsection (a) of section 2-
1114 rather than subsection (c).1 Having reviewed the entire record on appeal, particularly the
trial court's colloquy at the hearing on Monico's motion to reconsider, we do not believe that the
firm's statement can be fairly attributed to the court.
1
We note that Monico also contends that the trial court "fundamentally misconstrued the
statute" by concluding, "in effect," that subsection (c) applies only to cases tried to verdict rather
than to all medical malpractice cases. This is quickly dispelled by the record. During the motion
to reconsider, Monico argued this point to the court by stating that section 2-1114(c) applies to
all medical malpractice cases, not just those that go to trial. The court immediately responded,
"That is correct." Accordingly, we do not find Monico's current appellate subargument of
"fundamental misconstruction" in this respect to be viable.
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While it is true that the trial court awarded fees only under section 2-1114(a), it is evident
that it did so only after it looked at several factors. The court acknowledged that section 2-
1114(c) does allow for extraordinary fees above and beyond those prescribed in subsection (a); it
simply concluded that Monico had not done enough in Madalinski's case to merit such an award.
The record makes clear that the court did indeed, contrary to Monico's assertion, consider the
present circumstances. For example, the court's colloquy during the motion to reconsider is
replete with statements that it "read everything" and "looked at everything [the firm] gave" it in
support of its petition for enhanced fees. This included, by the court's own reference, the
affidavits, the ABA article, and documents from Pavich's work commitments in Europe. The
court also declared in its written orders denying Monico's petition for extraordinary fees and
motion to reconsider that it considered "all facts and circumstances" surrounding this issue.
Further, and even more specific, the court made mention of several Clay factors during the
hearing on the motion to reconsider. The court stated that it "took *** into consideration" how
far the case progressed, that it went beyond what occurred in Clay, and that it considered "all of
the factors" of Clay, i.e., that Monico took Madalinski's case at the very end of the statute of
limitations, the firm was able to resolve the case in just two years, Monico won the case, and
Madalinski was surely happy with the outcome--all while Pavich was commuting from Europe.
The court also recognized that Madalinski had signed a one-third fee agreement. Yet, upon all
this, the court concluded that "nothing that is in Clay ha[d] been submitted here, except for the
fact that *** [the firm] did a nice job on the case," and held, instead, that Monico's "submissions
f[e]ll far short" of exhibiting extraordinary services.
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No. 1-04-3350
From all this, we cannot conclude, as Monico would have us, that the trial court
completely ignored the evaluating factors announced in Clay. Simply put, the record clearly
contradicts this. Accordingly, the firm's assertion that the court wholly failed to exercise its
discretion in considering its petition for extraordinary fees is incorrect.
However, this is not the end of our discussion. Although we find that the trial court did
use its discretion in evaluating Monico's fee petition and motion to reconsider, we must still
address the firm's alternative contention; that is, we must examine whether, as Monico asserts,
the court abused that discretion in considering the Clay factors as they relate to the instant case
and in ultimately denying its petition for enhanced fees based on its conclusion that Monico did
not render extraordinary services. It is on this point that we agree with the firm and find that
Monico provided extraordinary services in litigating Madalinski's case, meriting reconsideration
of its fee petition under section 2-1114(c).
As noted, abuse of discretion is the proper standard to be applied when an appellate court
is called upon to review a judicial award of attorney fees. See Clay, 325 Ill. App. 3d at 899
(discussing legal reasoning and past case law to arrive at this conclusion as a matter of first
impression, noting that this determination is a qualitative rather than quantitative one in which
trial court is to apply own knowledge and experience); Ruiz, 366 Ill. App. 3d at 955 (denial of a
petition for enhanced attorney fees is reviewed under an abuse of discretion standard). A trial
court abuses its discretion when it makes an arbitrary decision or fails to use "conscientious
judgment" in reaching its ultimate determination. See In re Marriage of Munger, 339 Ill. App. 3d
1104, 1107 (2003); accord In re Marriage of McDonald, 113 Ill. App. 3d 116, 119 (1983).
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Monico presented the trial court with various submissions addressing each of the Clay
factors used to evaluate fee petitions. Regarding the first factor of time, labor and difficulty,
Monico asserts it expended some 2,000 hours working on Madalinski's case. While the firm has
not detailed how it spent these hours via "official" time sheets, it has included in the record a
copy of its "costs advanced" sheets which, though primarily highlighting the costs associated
with the case, also chart what the firm did (i.e., depositions, filings, record reviews) on what
particular days. Most significantly, these sheets provide the names of the various witnesses and
medical experts Monico contacted, worked with and deposed. While perhaps not the best
evidence to demonstrate the time and labor allocated in a case, the sheets do verify Monico's
assertions that it deposed some 45 witnesses, conducted lengthy expert (four liability and one
damages expert, two of which resided out of state) and written (hospital manual and protocol
review, requiring further depositions) discovery, participated in two all-day mediations, and
prepared for trial. Moreover, as further evidence of its labor and the intricacy of the underlying
case, Monico called 20 witnesses at trial and presented medical expert testimony via 6 evidence
depositions, one of which required an out-of-state visit. The trial lasted some 2 ½ weeks.
As soon as Monico accepted Madalinski's case, the firm dealt with the next Clay factor of
the likelihood of acceptance precluding other employment. Monico informed Madalinski even
before taking his case that Pavich, the lead attorney who would be working on it, had just been
assigned by the United Nations War Crimes Tribunal to work in Europe for three to six years.
Monico further explained that the firm was in the process of opening an international office and
transferring some of its staff to Europe as well. Though it would accept the case, Monico made
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No. 1-04-3350
certain that its new client understood it was reducing its number of cases overall because of this
and that the instant case would require a lot of effort because it would be vigorously defended by
the opposing party.
In addressing the next factor of the fee customarily charged for such a case, Monico
presented the trial court with documents from two prior cases in which the firm was involved.
Both of these, like Madalinski's, were wrongful death medical malpractice cases involving
surviving spouses and children. In both these instances, Monico was awarded a one-third fee for
its work.
Regarding the amount involved and the results obtained in this case, we note that
following two all-day mediations, the hospital made no offer to Madalinski. Yet, at the close of
trial, Monico was able to secure a high-low agreement of between $2 million and $5,750,000.
And most interestingly, the jury, returned a verdict of $12,407,572. Monico, thus, was able to
secure the high end of the agreement for Madalinski and his children, a sizeable settlement
especially in light of the fact that two other firms had reviewed and then declined to take his case.
Also significant is that the firm was able to negotiate a settlement; this meant no posttrial
motions or appeals jeopardizing or delaying Madalinski's award. Clearly, Monico obtained
optimal results with the work it performed, with even the trial court here acknowledging that
Madalinski was undoubtedly satisfied.
These results are even more impressive when the time limitations surrounding this case
are considered. Madalinski did not present the case to Monico until there were only a few weeks
left before the expiration of the statute of limitations on the claim. In addition, as noted earlier,
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Madalinski approached Monico at a time when the firm was expanding to Europe, it was
decreasing the number of cases accepted, and one of its primary attorneys, the one who would be
assigned to the case, was required to work overseas on international matters for three to six years.
In spite of this, Monico was able to conduct an expedited review of Madalinski's case and find, in
a very short amount of time, substantive legal evidence through its consultations with experts to
form the bases of viable claims--something two previous law firms could not. Not only was
Monico able to timely file the suit, but it was able to do so on behalf of both Madalinski and his
minor children and include claims other than wrongful death, such as counts involving the
Survival Act and Family Expense Act.
Regarding the remaining Clay factors, Monico demonstrated to the trial court that it had
built a relationship with Madalinski that has lasted approximately four years and while the
majority of it encompassed preparing him and his children for this trial, the firm also helped the
family in other legal matters. Moreover, the affidavits Monico provided in this case from long-
time medical malpractice attorneys Fetzer and Gifford provided worthy insight into the firm's
experience, reputation and abilities. This is because Fetzer and Gifford observed firsthand
Monico's conduct and preparation at the two all-day mediations. Fetzer and Gifford, having
become quite familiar with the case, both attested that the firm invested an extraordinary amount
of time and effort during discovery and pretrial stages, that this was a difficult case with a
significant risk of a defense verdict, and that Monico "demonstrated an exceptional degree of
skill, tenacity and perseverance throughout" the litigation. Additionally, it cannot be denied that
Pavich has a formidable legal reputation, exemplified by his selection by the United Nations War
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Crimes Tribunal to be its lead and consulting counsel in several major international matters.
Pavich, in fact, has litigated medical malpractice claims for over 20 years and has been a
mediator, and his litigation team at Monico is stocked with experienced personnel, including a
nurse/attorney whose experience and knowledge proved vital to Madalinski's case. Finally, as
the trial court recognized, Madalinski agreed at the outset of this case to a one-third contingent
fee agreement. He has not at any point in this matter, even at the current appellate level,
attempted to declare that such a fee for the work Monico did in his case is unreasonable.
Upon review of all these factors, one may argue that the submissions in the instant case
are similar to those of attorney Slutsky in Clay and, thus, that the same result should be reached;
that is, that Monico does not merit additional fees under section 2-1114(c). However, as we
highlighted earlier, the instant case is distinguishable from Clay. Again, the trial court in Clay
held that Slutsky had performed extraordinary services in the underlying medical malpractice
case. See Clay, 325 Ill. App. 3d at 897. Although the trial court did not give Slutsky a full one-
third fee, it did award him in excess of what he would have received under section 2-1114(a)
(about 26.68% rather than 20% of the recovery) by instead evaluating his fee petition under
subsection (c), precisely because of his extraordinary services. See Clay, 325 Ill. App. 3d at 904.
That Slutsky was found to have performed extraordinary services and merited a fee review
pursuant to subsection (c) rather than (a) was never in dispute; the Clay court acknowledged the
trial court's holding that Slutsky had performed accordingly and focused only on whether the
enhanced fee it had awarded Slutsky under subsection (c) should have been greater (i.e., an
amount closer to one-third or perhaps even more, as he desired) because of his extraordinary
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services. See Clay, 325 Ill. App. 3d at 897, 901-04.
The significant difference in the instant case is that the trial court here, after employing
the criteria the Clay court used to determine the propriety of Slutsky's award, held that Monico
did not perform extraordinary services in Madalinski's medical malpractice case. Yet, based on
our review of the factors, it is clear to us that the firm did indeed perform these services,
particularly when Monico's submissions for its additional fee petition are compared to Slutsky's.
The Clay court declared it had no basis to alter the trial court's award for multiple reasons. For
example, it criticized Slutsky for his failure to provide factual support for several factors, such as
his skill and standing in the community and the customary charge for similar services. See Clay,
325 Ill. App. 3d at 903. Nor did Slutsky ever provide documentary evidence of other similar
instances where fees were increased to one-third of a recovery, or any detail as to how he spent
the hours he said he worked on the case, or at the very least how many doctors or experts he
contacted. See Clay, 325 Ill. App. 3d at 903. Moreover, the Clay court found the affidavits
Slutsky submitted to be conclusory and nonspecific. See Clay, 325 Ill. App. 3d at 903. And,
significantly, though Slutsky reached a favorable settlement for his client, he was never required
to take the case to trial. See Clay, 325 Ill. App. 3d at 903 (Slutsky's skill and the difficulties of
the case were "never fully tested in a trial arena").
Monico's situation, however, is in direct contradiction to Slutsky's. Unlike that attorney,
Monico demonstrated the firm's skill and standing in the community by submitting documents
showing that its lead attorney had been hand-selected by a committee of the United Nations to
lead and consult on international projects in Europe. Monico's employees are also well versed in
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medical situations, having a registered nurse/attorney on staff whose experience and knowledge
proved vital to Madalinski's case. Moreover, unlike Slutsky, the firm provided the trial court
with two other medical malpractice cases similar to Madalinski's on which it worked (i.e., also
involving surviving spouses and children), wherein its fees were increased to one-third of the
recovery. While Monico, like Slutsky, failed to attach an "official" time sheet outlining the hours
of its work in this case, the record does contain a list of its costs advanced which clearly details,
unlike Slutsky's submissions, all the doctors and experts the firm contacted as well as all the
activities it performed on Madalinski's behalf to prepare his case. Significantly, though the
ultimate conclusion of this case was a settlement, Monico's skill and mastery of the difficulties of
this case, unlike Slutsky's, were tested at a trial that lasted almost three weeks and would have
obtained a huge jury award for Madalinski.
In addition to this, it cannot be forgotten that Monico took Madalinski's case with only a
few weeks left before the expiration of the statute of limitations, and two previous firms had
refused to take the case because they could not substantiate any viable claims. Monico was able
to conduct an expeditious review, complete with experts, and timely file the case to include the
minor children and multiple counts of liability. The firm then took the case all the way to trial,
all while its lead attorney juggled obligations overseas. While the affidavits Monico attached to
its fee petition can be labeled conclusory in some respects like those in Slutsky's case, these
affiants, as mediators, were more than familiar with this case. Gifford and Fetzer saw firsthand
Monico's preparation and work from pretrial to settlement; they were not simply detached
attorneys commenting on general medical malpractice cases but, rather, active participants who
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attested to the difficulty of Madalinski's case in particular, the "significant risk" of a defense
verdict, its vigorous contest, and the "exceptional degree of skill, tenacity and perseverance" of
Monico throughout the entire litigation.
It is our view that if, based on the facts of Clay, that trial court found that Slutsky
warranted an enhanced fee for extraordinary services and awarded him accordingly under section
2-1114(c) with the reviewing court's acknowledgment and affirmance, then Monico, which
submitted even more support for its assertion that it performed extraordinary services, certainly
deserves the same. It is the differences between the instant case and Clay, which we have
highlighted, that support our reasoned conclusion that Monico merits a reconsideration of the
trial court's determination that the firm did not perform extraordinary services in Madalinski's
case.
Therefore, having found that Monico performed extraordinary services on behalf of
Madalinski in the underlying medical malpractice case, we believe the best course of action is to
remand this case to the trial court to reevaluate the firm's additional fee request pursuant to
subsection (c) of section 2-1114 dealing with extraordinary services, rather than subsection (a),
which does not consider them. See Clay, 325 Ill. App. 3d at 899 (having the trial court, which
observed counsel during litigation, evaluate a fee claim is "the more appropriate" method of
review).
CONCLUSION
Accordingly, for all the foregoing reasons, we reverse the judgment of the trial court and
remand this cause for further proceedings pursuant to our decision.
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No. 1-04-3350
Reversed and remanded.
McNULTY, J., concurs.
O'MALLEY, J., dissents.
Justice O'MALLEY dissenting:
I respectfully dissent from the majority opinion. I would not send the case back for
reconsideration but would affirm the trial court's finding that no exceptional circumstances exist
which would justify additional fees. However, I would reverse the lower court and hold that a
one-third contingency fee should be awarded based upon the fact that the client signed a valid
contract agreeing to the same.
First, in my view, there is no reason to send this case back pursuant to any subsection of
section 2-1114 (735 ILCS 5/2-1114 (West 2006)), or for any other reason. The record shows that
the trial court carefully considered everything plaintiffs proffered to show that their
representation was exceptional; further, she repeatedly said that she had considered "everything."
The judge found that while these attorneys had done a good job which resulted in a favorable
outcome for plaintiff, there was insufficient evidence of extraordinary work which would justify
a fee larger then what the statute prescribes.
The majority acknowledges, and I agree, that the standard which applies here is an abuse
of discretion. Thus, if we were to reverse the trial court's decision as to exceptional
circumstances or the lack thereof, we would have to find that no reasonable court could have
reached the same conclusion. Clay v. County of Cook, 525 Ill. App. 3d 898 ("an abuse of
discretion occurs when no reasonable person would agree with the position taken by the trial
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No. 1-04-3350
court"). While as a reviewing court, we may have reached a different conclusion, it is axiomatic
that we should not substitute our judgment for that of the lower court, because it is almost always
in a better position to assess the circumstances. See In re Marriage of Samardzija, 365 Ill. App.
3d 702, 708 (2006) ("Under the abuse of discretion standard, the question is not whether the
Appellate Court might have decided the issue differently, but whether any reasonable person
could have taken the position adopted by the trial court").
In reviewing the evidence presented regarding the number of depositions, motions in
limine, a single mediation and other work performed, this very experienced trial judge reached
the conclusion that there was nothing out of the ordinary. Viewing the same evidence, I cannot
say that no reasonable person could have reached this conclusion. Medical negligence cases
routinely, or as a matter of course, require an enormous commitment in terms of time and money
for lawyers who handle them. The lawyers presumably know this at the outset. In this case, the
number of depositions, 45, and motions in limine, 29, and the length of the trial, 2 ½ weeks,
among other things, does not appear to be extraordinary for this type of litigation. In fact, the
numbers in other cases, are often well in excess of those documented in this case.
The only unusual thing here is that a partner who had European commitments was
assigned to this case and apparently did much commuting. This seems to be the firm's choice
and, in my view, does not represent any "extraordinary effort." I would thus affirm the lower
court's ruling that no exceptional circumstances existed which would justify a larger than normal
fee. In addition, because I believe the court examined all the factors initially, I would decline to
send it back for another review.
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However, the client in this case signed a contract agreeing to pay the firm "one-third of
the gross sum recovered." No one, including the client, has challenged that. The Supreme Court
has held that contingent fee agreements are appropriate so long as they are reasonable. Arnold v.
Northern Trust Co., 116 Ill. 2d 157 (1987). One might speculate that the client was under some
pressure to agree to a larger fee where his case had been declined by several other law firms and
the statute of limitations was running imminently. An equally reasonable speculation is that the
client was absolutely delighted to have found someone to champion his cause. However, this is
pure speculation and there is no allegation or even suggestion here that this contract was not
absolutely voluntary nor that it was not reasonable. Therefore, I would reverse and award the
additional fees requested by the law firm on the basis of this valid contract.
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