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A New York appeals court Tuesday reinstated a $16 million medical malpractice verdict that was set aside last year because of what a state judge called “reprehensible” conduct by the plaintiff’s attorney. The brief, unanimous ruling from the Appellate Division, 1st Department, found that remarks made by the attorney, Thomas A. Moore of New York’s Kramer, Dillof, Livingston & Moore, did not affect the outcome of the trial and did not warrant a reversal. “Aside from the fact that defendants failed to properly preserve the issue of plaintiff’s counsel’s conduct at trial or to show error so fundamental that it caused a gross injustice, such behavior and comments were not shown to have substantially influenced or affected the fairness of the trial,” the court wrote in Smith v. Au. “The record does not indicate that the conduct created a hostile atmosphere, that it affected the jury’s deliberations or verdict, or that the trial court found it necessary to threaten or impose sanctions or to hold counsel in contempt.” The appeals court returned the case to Bronx Supreme Court Justice Stanley A. Green, who will now consider a motion by the defendants saying that the verdict is excessive. Moore won the verdict for Kevin Smith, a former law firm clerk who claimed doctors at Montefiore Medical Center failed to diagnose medical problems that led to a stroke. The jury sustained three of five malpractice claims against two of three doctors named in the suit. Green set aside the verdict last August in a scathing 11-page opinion that recounted several instances in which he said he had to reprimand Moore and in which Moore raised his voice and made remarks that the court deemed undignified. At one point, Justice Green excused the jury and told Moore that he had a problem with the attorney’s “attitude.” “Just be quiet while I am talking,” the judge said. “You are going to stop this manner now.” The judge later added: “You belittle me and you belittle the institution and I will not tolerate it, not from you, not from anybody.” In other exchanges, Moore told the judge not to “interrupt” his cross-examination and said, “You’re being cute now,” when the judge again commented on Moore’s behavior. Though Justice Green finished the trial without declaring a mistrial or sanctioning Moore, he later wrote that “upon reflection” he had determined Moore’s conduct to be “reprehensible.” Moore, the judge wrote, “created a hostile climate that obscured the issues, rendered the trial unfair and was degrading to the institution of the Court.” Green then set aside the verdict. In reversing that ruling, the 1st Department found that Justice Green had gone too far and instead should have considered the defendant’s claim that the verdict was excessive. “Two of the incidents cited by the trial court as a basis for setting aside the verdict did not occur within the jury’s hearing, and the jury did not find in plaintiff’s favor on all issues of liability or damages,” the appeals court wrote. The court added that there was “ample basis for a rational person to logically reach the same conclusion as the jury.” Roy L. Reardon of Simpson Thacher & Bartlett, who handled the appeal for Smith, said of Green, “I think the judge, in my judgment, behaved very judiciously on all occasions. The key issue was whether the jury had been impacted by any of the conduct that the trial judge was unhappy with. The Appellate Division, I believe, came to the right conclusion that it wasn’t.” Moore said Tuesday that he was pleased with the ruling and happy for his client. He said he had no concerns about Green’s continuing with the case after his harsh ruling. “As far as I’m concerned he can look at this dispassionately,” Moore said. “I have confidence that he’ll handle it as he should.” Steven J. Ahmuty of Shaub, Ahmuty, Citrin & Spratt represented the doctors. He could not be reached for comment. Justices John T. Buckley, Peter Tom, Joseph P. Sullivan, and Milton L. Williams concurred on the ruling.

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