Wresting $130M verdict from jaws of defeat

By Pat Murphy
The Daily Record Newswire
 
BOSTON — New York defense attorneys were having a good laugh back in 2009. The snickering was over the story of a well-known medical malpractice lawyer who lost his case after turning down an $8 million settlement offer.

But no one’s laughing now.

Manhattan lawyer Thomas A. Moore turned initial defeat in a birth injury case into the second-largest personal injury award in New York history. On April 16, a Suffolk County jury awarded $130 million to Moore’s client, 10-year-old Shannon Reilly.

Shannon suffered severe brain damage at birth. Moore convinced the jury that her injuries were the result of the negligence of a nurse who took care of her mother when Shannon was born at St. Charles Hospital and Rehabilitation Center in Port Jefferson, N.Y.

“The saddest part of this case is this baby could have been rescued despite the litany of errors,” said Moore, one of the top medical malpractice attorneys in the country.

But the final chapter hasn’t been written in this epic saga. Defense attorney Peter C. Kopff, who represented the hospital, thinks Moore’s theatrics at trial could get the verdict overturned.

And even if the hospital can’t escape liability entirely, Kopff is confident that state law will require a dramatic reduction in the $130 million award.

“Shannon Reilly suffers from a form of cerebral palsy that makes her a prisoner in her own body,” Moore explained. “She cannot walk and she cannot speak.”

According to Moore, Shannon’s severe brain damage was the result of being deprived of oxygen for nearly an hour just before her birth on the evening of Nov. 1, 2002. Specifically, Moore argued that Shannon’s injuries were directly attributable to a series of mistakes made by the St. Charles Hospital nurse attending Shannon’s mother, Dani Anne Reilly, during delivery.

Moore said that the alleged mistakes included easily avoidable errors, such as failing to give the mother oxygen and extra fluids during labor, and turning her onto her side.

Two other alleged nursing errors took center stage when the case ultimately proceeded to trial.

 According to Moore, Reilly’s nurse made critical mistakes in failing to immediately notify the OB-GYN handling the delivery — Dr. Jerry G. Ninia — of decelerations in the fetal heart rate and the fact that the intrauterine pressure catheter used to monitor the mother’s contractions had stopped working.

Because Ninia was not informed of these developments immediately, Moore said, the mother did not receive an emergency C-section in time to prevent Shannon’s injuries.

“Had the nurse communicated with the obstetrician just 20 minutes sooner, this terrible tragedy could have been avoided,” Moore said.

Kopff had a different story to tell. According to the defense attorney, the medical evidence showed that Shannon’s injuries were a result of her mother suffering a uterine rupture and abruption of the placenta a half hour after the alleged negligence on the part of the St. Charles Hospital nurse and approximately 15 minutes before Shannon’s actual deliver by emergency C-section.

“There was no negligence,” Kopff said.

But Moore said that Kopff’s theory of the case was off target.

“Mr. Kopff has the right church but the wrong pew,” Moore said. “The problem with his theory of causation is that it doesn’t explain the reasons for why the baby was showing a diminution of oxygen many minutes before the rupture and abruption.”

Moore said that he was able to show that the mother’s medical complications were relatively minor problems that were not the true cause of Shannon’s catastrophic injuries. “We were able to prove a very small rupture of the uterus and almost no bleeding as a result of the abruption,” Moore said. “We had this thing going on for about 50 minutes, and it was the last 20 that were critical for the baby.”

The jury’s award in April included $82.5 million for Shannon’s future pain and suffering, and $10 million for her past pain and suffering. The jury also awarded $5.8 million for the cost of home health aides, $5.5 million for lost earning capacity, $4.2 million for physical therapy and $1.4 million for speech therapy.

While Moore takes pride in the verdict now, he admits to a long and difficult journey.

In 2009, Moore suffered a stunning defeat when the jury in the first trial returned a defense verdict.

Perhaps the worst part was that Moore had advised Shannon’s parents days before trial to reject an $8 million settlement offer.

Moore said he had rejected similarly large settlement offers in other cases, and he didn’t second guess himself until that first verdict.

“Prospectively, I never doubted we were doing the right thing,” Moore said. “But after the jury came back with a defense verdict, I told myself, ‘My God, you’ve made the wrong decision.’”

Right there to rub salt in the wound was Kopff, an old nemesis of Moore’s. According to Moore, Kopff called The New York Post to tell the tale of the well-known lawyer who had bungled his case.

“I’m not aware of another attorney who’s turned down an $8 million offer and got shut out,” Kopff told The Post at that time.

Moore credits Shannon’s parents for sticking with him through the adversity.  The Reillys’ confidence initially paid off in 2011 when a New York appeals court granted a new trial on the grounds that the defense verdict was against the weight of the evidence.

But in 2012, a second trial yielded a hung verdict when jurors found negligence but couldn’t agree on causation.

Moore won round three of this battle royale last month when, after a three-week trial and two days of deliberations, a unanimous jury returned the staggering $130 million verdict for Shannon.

But the story may not be over. Kopff said clear New York precedent calls for the award to be dramatically reduced.

“The verdict is contrary to the New York rule that you cannot do a time measurement for pain and suffering,” Kopff said. “I expect the trial judge to reduce the entire award for future pain and suffering to below $4 million.”

Moore conceded as much.

“The verdict will be reduced,” Moore said. “New York is very much proactive in terms of remittitur.”

Kopff also said he had strong grounds for getting the $130 million verdict thrown out in its entirety based on Moore’s conduct at trial.

In particular, Kopff accused Moore of suggesting to the jury that an attorney affiliated with the defense was signaling witnesses from the spectator section of the courtroom.

Kopff also claimed that the trial judge should have declared a mistrial when Moore called a defense expert a liar. “The jury was clearly inflamed,” he said.

An unapologetic Moore said his comment about the defense expert wasn’t cause for a new trial.

“He was [a liar],” Moore said. “It was a tempest in a teapot. The judge gave a curative instruction and we moved on.”

Kopff also complained about Moore’s trial style.

“Moore’s style is a very angry style, it’s very emotional,” Kopff said. “I think he does it deliberately, hoping that juries will latch onto that anger.” Moore was unfazed by the defense lawyer’s criticism.
“If I didn’t show passion in representing clients like Shannon Reilly, I shouldn’t be doing what I’m doing,” Moore said.
 

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