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Superior Court of New Jersey Judge Alexander Lehrer got a tongue-lashing Nov. 20 from the state Appellate Division, which said he “paid lip service” to its order to reduce a $3 million verdict found to be excessive. Lehrer did reduce the verdict — by exactly one cent — apparently in protest of the appeals court’s 2001 order. In so doing, he “violated longstanding principles of our jurisprudence governing the relationship between trial and appellate courts,” wrote Judges Anthony Parrillo, Richard Newman and Helen Hoens in Tomaino v. Burman. “This principle is so basic to the legitimacy of the judicial system that it is difficult to fathom the trial judge’s departure from our clear command.” “Unfortunately, the administration of justice has been disserved, and the parties unfairly and improperly burdened, by the failure of the trial judge to follow our instructions,” they added. In 1990, Joseph Tomaino visited the Male Sexual Dysfunction Institute, run by Chicago thoracic surgeon Sheldon Burman, to be treated for premature ejaculation. Burman gave him an injection of papaverine, a drug used to treat impotence, and sent him home with a supply of the drug and syringes so he could give himself further treatments. Two years later, Tomaino developed an abnormally prolonged erection, and Burman advised him by telephone to go to an emergency room. After a shot of epinephrine failed to remedy the problem, Tomaino underwent surgery to graft a vein from his leg, leaving him impotent. The jury awarded Tomaino $3 million but reduced the award by 20 percent to account for his comparative negligence. In 2001, the appeals court affirmed the jury’s liability verdict but ordered remittitur, since Tomaino had recovered 80 percent of the rigidity of his erection and did not claim emotional distress. Last month, the panel ordered a new damages trial, this time without Lehrer. Tomaino’s lawyer, Dennis Drazin of Red Bank’s Drazin & Warshaw, says he will ask the New Jersey Supreme Court to hear the case on the ground that its ruling in Fertile v. St. Michael’s Medical Center was improperly applied. That case holds that an excessive damages award does not justify a new trial on liability or damages absent prejudicial trial error or attorney misconduct. “We think the Appellate Division ignored that opinion,” Drazin says. “The gist of it was that it was not supposed to go and look at it in a vacuum. If a verdict is sustainable based on facts, then the verdict should not be disturbed.” The physician and his clinic were represented by Joseph Manning, a partner at Marshall, Dennehey, Warner, Coleman & Goggin in Roseland, N.J. Manning did not return calls about the case.

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