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No. 132823
| Kevin Smith, |
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Robert Gittleman |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Oakland - Goldsmith, M.) |
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| Louie Khouri, D.D.S., Louie Khouri, D.D.S., P.C., |
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| and Advanced Dental Care Clinic, L.L.C., |
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Gary N. Felty, Jr. |
| Defendants-Appellants. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Brief on Appeal>>
Plaintiff-Appellee's Supplemental Brief>>
Defendants-Appellants' Brief on Appeal>>
Attorney General's Amicus Curiae Brief>>
Michigan Association for Justice's Amicus Curiae Brief>>
State Bar of Michigan's Amicus Curiae Brief>>
State Bar of Michigan Negligence Section's Amicus Curiae Brief>>
Background
Kevin Smith sued Dr. Louie Khouri for dental malpractice. After discovery, the parties proceeded to case evaluation, pursuant to Michigan Court Rule 2.403. The three attorneys on the case evaluation panel issued an award of $50,000 in Smith’s favor. Smith accepted the case evaluation, but Khouri rejected it, and so the lawsuit proceeded to trial. The jury found that Khouri was negligent; the jury awarded Smith $323.36 in economic damages and $46,331.18 in adjusted non-economic damages. Smith sought sanctions under MCR 2.403(O), which states that a party who has rejected a case evaluation “must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation.” From a defendant’s perspective, a more favorable verdict is one that is “more than 10 percent below the evaluation,” the court rule provides. Because the jury’s verdict was not 10 percent below the $50,000 evaluation that Khouri rejected, he became liable for Smith’s “actual costs.” “Actual costs” include “a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation,” the court rule provides. The trial court determined that a reasonable attorney fee was $65,556, based on an hourly rate of $450 for Smith’s lead counsel and $275 per hour for associate counsel. In so finding, the court observed that Smith’s lead trial counsel has “superlative standing” in the area of dental malpractice, and achieved a favorable verdict for Smith in a difficult case. The Court of Appeals affirmed the trial court’s award of attorney fees in an unpublished opinion, finding that the trial court’s ruling was not an abuse of discretion. Khouri appeals.
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