A Philadelphia judge has ruled that two expert witnesses who hired a firm to prosecute their claims over their fees must pay their former legal counsel close to $90,000 for their appeal in the case.
Marjorie Aamodt, a psychologist, and Norman Aamodt, an engineer, as well as the now-deceased Vladimir A. Shevchenko, were experts in litigation over the meltdown at the Three Mile Island nuclear power plant, and they sued the law firm of Levin, Fishbein, Sedran and Berman over their expert fees.
Brett A. Datto, of Weir & Partners, represented the Aamodts under a 35 percent contingency-fee agreement in a lawsuit that resulted in a jury finding in 2006 the experts were owed $339,710, according to Philadelphia Court of Common Pleas Judge Gary F. DiVito’s opinion in Weir & Partners v. Aamodt.
After the trial, Datto told the Aamodts his work on a post-trial motion for attorney fees and costs would be done on a contingency basis, and the Aamodts signed a letter in 2006 agreeing they would be responsible for all costs and attorney fees associated with a post-trial motion, DiVito said.
Later in the life of the case, Marjorie Aamodt agreed in a 2007 email to pay Datto’s hourly rate during an appeal, DiVito said. After an appeal to the Superior Court, the verdict was molded in favor of the Aamodts for a total of $455,187, DiVito said.
In 2008, Datto said that, if “substantial accrued costs and fees” were not paid, the firm would have to withdraw from representing the Aamodts for a further appeal, which led Marjorie Aamodt to send a letter dismissing Weir & Partners as the couple’s counsel, DiVito said.
Ultimately, DiVito found that Weir & Partners were owed $88,814 for work on the post-trial motion and for work on the appeal to the Superior Court, according to the judge’s opinion.
The Aamodts argued that the agreements that Weir & Partners would handle the post-trial motion and the appeals process on an hourly basis did not exist, DiVito said.
But DiVito said the agreement letters, as well as the original contingency agrement, did not “possess either patent or latent ambiguity.”
“On its face, no reasonable person would assume that the contingency agreement would cover the appeals process,” DiVito said.
The letters regarding the motion for attorney fees dated Oct. 10, 2006, and Oct. 18, 2006, had “similarly incontrovertible language” when one letter stated, “‘I am advising you that this case must now be handled on an hourly basis, with you continuing to be responsible for all costs … my hourly rate is $310 and the hourly rate of Jennifer is $235,’” DiVito said.
The Feb. 2, 2007, letter about the fees for handling the appeals process “contains equally clear terms,” DiVito said, when it stated: “‘In order to proceed with the filing on an appeal … it is necessary that you pay us on an hourly basis for any appellate proceedings that occur … We will charge you in the same manner as our fee agreement for the attorney’s fee motion.’”
The Aamodts accepted the offer, with Marjorie Aamodt emailing March 12, 2007, “‘We would agree to what you represent with our understanding of how that would play out … We will make a good faith effort to keep current in paying on the costs of the appeal. You can help us with that — by identifying what work was performed and providing receipts and time records — reducing costs as much as possible,’” DiVito said.
There was consideration because the Aamodts made some payments and the firm represented the Aamodts before the Superior Court for 10 months, DiVito said.
“I wrote both of the fee agreements and I was glad Judge DiVito ruled that the wording of my fee agreements were not ambiguous,” Datto said.
The Aamodts’ trial counsel, Jason Aamodt, who resides in Oklahoma, did not respond to a request for comment.
The Aamodts have not posted a bond in Superior Court in order to have a supersedeas in place to stay the proceedings, so Weir & Partners is attempting to collect on the judgment, Datto said.
When Datto testified in front of DiVito, Datto’s partner, Jeffrey Rudnick, questioned him, Datto said.
DiVito also rejected that Weir & Partners should pay the Aamodts’ legal costs in hiring new counsel after they ended Weir & Partners’ representation.
(Copies of the 14-page opinion in Weir & Partners v. Aamodt, PICS No. 12-1341, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •