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It took more than two years, but malpractice attorney Thomas A. Moore has won a $13.8 million verdict in a case where his combative style nearly cost him — and his client — every last cent. In Smith v. Au, 5966, the Appellate Division, 1st Department, has upheld $13.8 million of a $16.3 million verdict that Moore and his firm, Kramer, Dillof, Livingston & Moore, won for a former law firm clerk who suffered a stroke after doctors allegedly failed to diagnose medical problems. The final award came eight months after Bronx Supreme Court Justice Stanley A. Green reduced it to $9.6 million. In a brief ruling last week, a unanimous panel of the 1st Department said the figure was too low. Two years ago, that figure had dropped to zero. In September 2003, Green dismissed the entire $16.3 million verdict, citing Moore’s behavior at trial. The judge reprimanded Moore for talking back to him, obscuring the issues and degrading the court. He called the lawyer’s conduct “reprehensible.” At one point, Green and Moore engaged in a heated exchange over the meaning of the phrase “on the same page.” The judge concluded the back and forth by saying, “Please don’t raise your voice to me again. End. Final.” Green did not sanction Moore and there was no motion for a mistrial. But after the verdict was delivered, the judge granted a motion to set aside the verdict because of Moore’s conduct. At the time, Moore, who is a Law Journal columnist, defended his conduct and said he was upset by the ruling. Last year the 1st Department reinstated the entire award. “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 court wrote in its 2004 decision. The case returned to Green on a motion claiming the verdict was excessive. In a six-page ruling, he reduced the award by nearly $7 million. In the biggest reduction, he decreased a $7 million award for future home health care to $4 million after finding that the plaintiff, Kevin Smith, was able to feed himself and walk well enough to not need round-the-clock care. In its ruling last week, the 1st Department largely agreed with Green’s assessment of future home health needs, increasing the award to $4.5 million. But the court objected to the other reductions, including cutting a $5 million award for future pain and suffering to $3 million. The court reinstated that and other awards, leaving a total verdict of $13.8 million. Moore in a statement this week, said he was pleased with the verdict and relieved that “this ordeal is finally behind us.” Justices David Friedman, Eugene L. Nardelli, Luis A. Gonzalez and James A. Catterson concurred on the ruling. Steven J. Ahmuty of Shaub, Ahmuty, Citrin & Spratt represented the defendant doctors. Matthew Gaier of Kramer Dillof argued the appeal for Smith.

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