Forman v. Mount Sinai Medical Center

128 F.R.D. 591, 1989 U.S. Dist. LEXIS 13774, 1989 WL 155125
CourtDistrict Court, S.D. New York
DecidedNovember 20, 1989
DocketNo. 86 CV 1213 (KMW)
StatusPublished
Cited by8 cases

This text of 128 F.R.D. 591 (Forman v. Mount Sinai Medical Center) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forman v. Mount Sinai Medical Center, 128 F.R.D. 591, 1989 U.S. Dist. LEXIS 13774, 1989 WL 155125 (S.D.N.Y. 1989).

Opinion

OPINION

KIMBA M. WOOD, District Judge.

Plaintiff moves pursuant to 28 U.S.C. § 1927 to assess against counsel for defendant all reasonable costs, including attorney’s fees, incurred by plaintiff in effectuating settlement as a result of defense counsel’s vexatious and unreasonable conduct, and for interest on the settlement amount from August 28,1989 to October 2, 1989, pursuant to the inherent authority of the Court. Defendant cross-moves pursuant to § 1927 for costs and attorney’s fees. For the reasons set forth below, plaintiff’s motion is granted and defendant’s motion is denied.

FACTS

A. Trial1

The case was tried to a jury by Thomas P. Mains, Jr., of Mains & Nichols, for plaintiff, and Jeffrey S. Wolk, of Bower & Gardner, for defendant. Mr. Wolk was assisted by Philip A. Di Pippo, an associate at Bower & Gardner. Because Mr. Di Pippo had failed to comply with the Court’s instructions and deadlines for filing pretrial materials, there were delays during trial to resolve legal and evidentiary issues that could have been resolved pretrial. See e.g., Trial Transcript (“Trial Tr.”) at 1700-1704, 1711-1714, 1720-1723, 1914-1915. During the trial, the Court saw Mr. Wolk signal-ling a witness three times, and reprimanded him each time. Trial Tr. at 1636-1639, 2301, and 2320-2323. Mr. Wolk also ignored several rulings on the scope of examination, frequently immediately following the ruling. Trial Tr. 189-191, 750-753, 1230, and 1936-1937.

B. Settlement Negotiations, July 27 to September 6 2

Periodically throughout the trial, the Court, with the consent of counsel, participated in settlement negotiations between [594]*594counsel. On July 27, after a total of fifteen trial days and just prior to the conclusion of the last witness’ testimony, counsel for plaintiff and defendant agreed on a settlement in the presence of the Court. The terms of the settlement were simply that defendant would pay plaintiff a sum of money in return for a full release by plaintiff. Both parties also at that time acknowledged in the Court’s presence that plaintiff intended to continue her action against Dr. L. Harrison Pillsbury, a doctor in Washington, D.C. unaffiliated with Mt. Sinai, and that the doctors from Mt. Sinai did not intend to testify in that action. No other terms were discussed or included.

As in most settlements, the effectuation of settlement required an order of dismissal, which was signed by counsel and “So Ordered” by the Court in the presence of counsel on July 27. In addition, because this was a wrongful death claim, the settlement had to be approved (in the form of a Compromise Order) by a court having jurisdiction over the decedent’s estate (in this case, any Virginia court of general jurisdiction). Both counsel told the Court that the settlement could be effectuated in thirty days; the Court then entered an Order of Dismissal that permitted the case to be reopened if the settlement was not effectuated within thirty days.

On July 28, Mr. Di Pippo telefaxed a proposed release to Mr. Mains. On August 14,3 Mr. Mains telefaxed a draft of the Petition and Compromise Order to Mr. Wolk for Mr. Wolk’s endorsement; Mr. Mains also informed Mr. Wolk that he had obtained a Virginia court date of August 23, and that he planned to present the documents to the Virginia Court at that time. Shortly after receiving the proposed settlement documents from Mr. Mains, Mr. Wolk advised Mr. Mains’ secretary by telephone that there would be a substantial delay in approving the settlement documents and that, in any event, no settlement would be effectuated unless and until deposition fees for defendant’s expert witnesses, Drs. Ilowite and Edelson, were paid.4 Mr. Mains responded to Mr. Wolk’s telephone call by telefax on August 21. He stated that the payment of deposition expenses was not part of the settlement:

[b]y no means was our settlement contingent or dependent in any way upon those matters. If we have a dispute about that, I am quite sure the Court will be happy to indicate whether or not my client is obliged to be responsible for such charges.

In addition, Mr. Mains advised Mr. Wolk that he had checked his records, that he believed Dr. Ilowite’s bill to be excessive, and that he had never received a bill for Dr. Edelson’s services. Mr. Mains also stated that he had sent Mr. Di Pippo a letter to that effect on February 27 but had received no response. Mr. Mains further said that he did not understand the reason [595]*595for the delay in approving the settlement documents. Mr. Wolk replied by letter dated August 23, but he did not address the delay in endorsing the settlement documents. Moreover, he did not clarify the amount of Dr. Ilowite’s bill and did not enclose a bill for Dr. Edelson’s services.

On August 29, Mr. Mains responded to Mr. Wolk’s August 21 follow-up letter, outlining in detail the function of the Virginia court documents (the Petition and Compromise Order). Mr. Mains explained that the addition of a release to the Compromise Order would be duplicative and unnecessary. Mr. Mains further stated that his client was prepared to execute the release previously sent by Mr. Di Pippo, and again requested that Mr. Wolk endorse the Compromise Order as a first step in effectuating settlement. Mr. Mains also stated that it would be inappropriate to include a provision for the payment of expert fees in the Compromise Order. He explained that the Compromise Order contained a list of disbursements for the sole purpose of authorizing payment; the Compromise Order was not intended as a device to resolve outstanding disputes between the parties. Defense counsel did not respond to Mr. Mains’ August 29 letter.

C. Settlement Negotiations, September 6 to September 22

On September 6, Mr. Mains contacted the Court and requested a telephone conference because settlement had not been effectuated. The history of the case was rife with allegations of bad faith between counsel, who found it difficult to communicate with one another, and the Court agreed to Mr. Mains’ request in the hope that Court involvement might facilitate the discussions between counsel. The Court held a telephone conference that day with Mr. Mains and Mr. Wolk. The Court asked Mr. Wolk what obstacles there were to settlement; Mr. Wolk replied that the only thing holding up settlement was the non-payment of expert fees. Although Mr. Wolk did not inform the Court of any additional obstacles to settlement at the September 6 telephone conference, defense counsel later claimed at various times that settlement could not be effectuated because (1) the Virginia Compromise Order did not reflect the payment to defendant’s experts, (2) the Compromise Order did not contain certain release language required by defendant,5 (3) the Compromise Order could not be endorsed until plaintiff executed a separate release that included a broader release than the release previously proposed by defendant’s own lawyer, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
128 F.R.D. 591, 1989 U.S. Dist. LEXIS 13774, 1989 WL 155125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forman-v-mount-sinai-medical-center-nysd-1989.