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A Bronx judge has set aside a $16 million jury verdict for what he called “reprehensible” conduct by one of New York’s top medical malpractice attorneys, who challenged the judge in numerous heated exchanges. Supreme Court Justice Stanley A. Green said the attorney, Thomas A. Moore of Kramer, Dillof, Livingston & Moore, “created a hostile climate that obscured the issues, rendered the trial unfair and was degrading to the institution of the Court.” Writing in Smith v. Sophia AU, M.D., 22183/99, an 11-page opinion dated late last month, Justice Green cited numerous instances of combativeness found in trial transcripts, which reveal Moore and the judge squabbling over the judge’s instructions, his rulings on objections and how to question witnesses properly. Moore said Tuesday that he was “upset” by the ruling and already had filed a notice of appeal. Though some remarks cited in the judge’s opinion were inflammatory, Moore said, they did not justify reversing a verdict from a two-week trial that ended without sanctions, a motion for a mistrial or a curative instruction to the jury. (Moore is a regular New York Law Journal columnist.) After the trial, the jury sustained three of five malpractice claims against two of three doctors at Montefiore Medical Center who treated Kevin Smith, a former law-firm clerk who claimed the doctors failed to diagnose medical problems that eventually led to a stroke. Justice Green wrote that he tried to finish the trial “without declaring a mistrial or holding [Mr. Moore] in contempt of Court.” But “upon reflection” and consideration of a motion to set aside the verdict in part based on Moore’s conduct, the judge said, “It is apparent that plaintiff’s counsel’s conduct was reprehensible.” One of the more caustic exchanges came when Moore asked a doctor if he thought it was appropriate for a medical team to “be on the same page” in treating a patient, a question that drew an objection from the defense attorney and this response from Justice Green: “I don’t know what that means.” “You don’t, I think everybody else in the room does, Judge, but I will be delighted to rephrase it,” Moore replied. Justice Green immediately excused the jury and reprimanded Moore, saying he had a problem with his “attitude” and his “demeanor in the courtroom.” “What are you talking about?” Moore said. “Just be quiet while I am talking,” Justice Green said. “You are going to stop this manner now. … You don’t argue with me. You don’t glare at me or do any of those things. And if you continue with it I will take more appropriate action. … Tie the witness in a knot if you will, but do not, do not again address me like that or behave like that in a courtroom I preside in.” Moore did not let up, responding: “So then, Judge, sustain the objection. Do not say that you do not know the meaning of ‘on the same page.’” “Do not tell me what to do,” the judge said. “You raise your objection, you make a motion, that’s the end of it. I don’t want to hear this anymore. You belittle me and you belittle the institution and I will not tolerate it, not from you, not from anybody.” “Do you say on this record that you don’t know the meaning of the phrase ‘on the same page?’” Moore replied again. “Don’t ask me a question. You have no right to ask me a question,” Justice Green said. “Thank you, Judge. It speaks for itself. I will be guided by your rulings,” Moore said. At other points, Moore told the judge not to “interrupt” his cross examination because “it’s losing continuity.” He also said, “Boy, I tell you. I take such exception to that . . . ” in response to the judge’s decision to sustain a motion by the defense; and told the judge “ you’re being cute now” when he had again commented on Moore’s manner. Justice Green repeatedly told Moore to refrain from raising his voice, one time saying, “Ask the next question and don’t raise your voice to me again.” “Please don’t raise it to me,” Moore responded. “Please don’t raise your voice to me again,” the judge said. “End. Final.” Justice Green also faulted Moore for denigrating opposing counsel and several witnesses with “mocking comments,” such as, “With all due respect, I asked a question that a fourth grader could answer if he’s telling the truth,” and “The game is up, Doctor, I hate to tell you.” The judge cited some of Moore’s closing remarks as prejudicial toward the defense attorney, including comments that there was an “orchestrated, deliberate, concerted effort” by the defendants “to deprive plaintiff of justice,” and that the defense attorney “did his best but he had to defend the indefensible.” Tuesday in an interview, Moore strenuously objected to allegations that he denigrated opposing counsel, saying, “In my career, I have assiduously avoided doing that, ever.” “You have to understand here, that I’m upset,” Moore said. “But I am far more upset by the fact that there is an innocent victim whose case is possibly prejudiced and time of redress is certainly delayed.” Montefiore Medical Center was represented by Patrick J. Brennan of Wilson, Elser, Moskowitz, Edelman & Dicker. He was handling a trial Tuesday and could not be reached for comment.

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