Fire and Oxygen

More than 20 years ago, Thomas Moore and Judy Livingston vowed to remain together in sickness and health. They have—not only to each other but to the same firm, now Kramer, Dillof, Livingston & Moore (KDLM), where their work is intrinsically tied to sickness and health: They are one of the most successful couples in legal history at helping victims of medical malpractice.

In their time together, they’ve notched more than 100 verdicts of $1 million or more—not to mention the hundreds of favorable settlements they’ve brokered. The pairing is greater than the sum of its parts, and those parts came from very different places.

Once Moore gets going about a client and the restorative power of a settlement, it’s difficult not to pay rapt attention. “What human endeavor on the face of God’s earth doesn’t have negative elements?” he asks those who criticize med-mal lawyers. “We have great good resulting from what we do, and society should be cheering us on instead of castigating us.”

Moore brings an impassioned approach to any discussion of his legal mission, which makes you wonder what kind of revivalist preacher was lost when Moore left Ireland for America in 1959 at the age of 17.

He earned his licentiate in sacred theology from Catholic University in 1968, until his own Great Awakening after graduation led him to Fordham Law School. Quite simply, and without any Thorn Birds-style drama, Moore decided not to become a priest, and the law seemed like a practical way to channel his natural rectitude and philosophical inclinations. Soon he started working in the legal department of an insurance company, Aetna Life & Casualty, to pay his way through law school.

“The insurance angle is less tangential than it seems,” says Moore. While Fordham gave Moore legal theory, Aetna is where Moore got to practice law, well before his peers. “I literally picked a jury the afternoon I was admitted to the bar,” he says, “and by the end of the year I was a seasoned trial lawyer.”

Dudley Thompson, one of Moore’s first bosses, recounts a case in which a jury awarded a woman $10 for a collapsing chair at a Yonkers raceway. Moore represented the raceway and found the verdict amusing—but not totally so. A loss was a loss. “I am more low-key than Thomas,” says Thompson. “Although so is most of the Western world.”

Eventually Moore left Aetna for the other side of the courtroom. The decision to fight for plaintiffs in personal injury cases was spurred by Moore’s mother, who, Moore insists, “was not reticent in her opinions.”

Richard Caplan, a senior partner at Aaronson Rappaport Feinstein & Deutsch, who has been Moore’s adversary for more than 25 years, faced Moore in one of Moore’s very first cases as a trial lawyer. Despite many courtroom battles, there’s nothing but personal and professional respect between the two. “If I had anything not nice to say about him I would,” Caplan says. “I know that when I face him in court, it’s going to be a significant hurdle for the defense.”

In 1978, Moore hooked up with Charles Kramer and Henry Dillof’s firm, which allowed him to work on some high-profile injury cases and medical malpractice suits. He buried himself in his work, barely noticing when, two years later, the firm hired a young woman straight out of law school.

Judy Livingston’s journey to the Manhattan-based law firm was shorter than Moore’s: a short hop across the East River.

She grew up in Long Island, went to college at Stony Brook, and then Hofstra for law school. She was fascinated by the law in the way any sociology major without a career path after college would be, and her idealism sparked a particular interest in personal injury cases. Her current job, minus her senior partnership role, remains her first. 

“A lot of women don’t like the combat,” Livingston says of trial law. She says she wonders if, historically, women’s socialization and the ethos of competitive sport absent from the lives of many young girls contribute to the problem; but she attributes her own willingness to engage in such an adversarial environment to the fact that there weren’t traditional gender roles in her house.

“Everything her brother did, she did,” Moore says. “Her father raised her as a guy.”

Livingston’s father started out as a locksmith for a large corporation and cracked bank vaults on demand. His daughter takes this approach both at work (where she unlocks cover-ups and picks apart holes in the defense) and at home (where she’s the one who programs the electronics and fixes the leaks).

Because Moore was always in trial when Livingston first started work at KDLM, their courtship literally had to happen in court. They were thrown together for a couple of cases but didn’t become romantically involved immediately. “I’ve been criticized,” Moore says, motioning to Livingston, “for being too slow rather than too quick in that regard.”

The two frequently take cases involving severely injured or parentless children. In one, a girl developed cerebral palsy from an infection that set in after a shunt was installed to drain fluid from her brain. In another, a child suffered brain damage from untreated meningitis just days after her birth. In a third, the father of a 9-year-old girl waited more than 12 hours in a hospital with a ruptured aorta, only to die while being transferred to another facility. All three cases resulted in multimillion-dollar verdicts.

Moore de-emphasizes the money. “I have never met a client who wouldn’t have stood up in the courtroom and said, ‘I am restored, keep your money, I don’t want a penny,’ and walked from the courtroom far more fulfilled,” he says.

Besides, these amounts rarely stand up on appeal. “The appellate courts in New York,” says Moore, “are by no means shy when it comes to reducing a verdict.” Worse, some states have caps on the amount that can be awarded to a plaintiff, while others, New York included, enable the presiding judge to alter the jury’s verdict through the process of additur and remittitur.

Take the 1990 case of Melis v. Kutin. Moore initially requested $13 million in damages, but the jury, sympathetic to the plaintiff and particularly disdainful of the tactics used by the defense, doubled the award to $26 million in its verdict. After reviewing the proposed damages, Justice Stanley Sklar reduced the amount to a shade under $5 million.

The largest verdict upheld on appeal is from a case Moore tried in 2003. In Desiderio v. New York Hospital, a case involving another child who suffered brain damage as a result of an improperly functioning brain shunt, the New York State Court of Appeals upheld a judgment of $29 million. It’s still the largest single amount ever awarded to a plaintiff in the state.

Then there’s the case of Patrick DeCrescenzo, who, in 2001, was brain-damaged from injuries suffered in childbirth. The case, DeCrescenzo v. Gonzalez, was tried in 2006. However, an appellate court recently reversed the $14 million verdict for Patrick due to perceived misconduct of the trial judge. “It’s seven years later and Patrick is yet to see a penny in compensation,” Moore says. “The decision was a huge setback.” The case will have to be retried.

Adds Livingston: “The ones you lose or that get taken away from you, they stay with you forever.”

Along with conservative appellate judges, Moore and Livingston also battle public opinion. Tort reform is often a major campaign issue. Medical malpractice lawyers are often seen as ambulance chasers issuing frivolous lawsuits, driving up the cost of health care and crippling the ability of good doctors to treat patients.

Moore and Livingston say the current system of redress isn’t perfect, but point out that the incentives don’t line up for lawyers to waste precious time and resources on frivolous cases. A 2006 study, published in the New England Journal of Medicine, and conducted by the Harvard School of Public Health (HSPH) and Brigham and Women’s Hospital, found that “most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.” When talking about the study, Moore and Livingston say, almost in unison, “People aren’t suing enough.”

“Malpractice is less than 1 percent of the cost of health care,” Moore adds. “This is not a system that is broken. This is a system that needs to be preserved, fostered.”

“Instead of vilifying trial lawyers or talking about tort reform,” Livingston says, “it’s amazing we don’t talk about how to reduce hospital errors.”

“Would you like society to correct these things before lawsuits?” Moore asks. “Sure, but it doesn’t. Are there frivolous lawsuits? Sure, but in what human endeavor are abuses absent? If there’s a credibility issue we don’t take the case, even though we think we could convince a jury that the claim is valid.”

The goal is to make medical care better, and, according to Moore and Livingston, malpractice suits have helped. The most notable example is anesthesia. Moore says that when he started practicing law, about 20 percent of malpractice cases were anesthesia-related; now it’s less than 1 percent. There isn’t drastically better technology but there is better monitoring. “The fact that negligence was exposed,” he says, “and that it was in cases of great moment and involving quite a bit of money was an ancillary motivating factor” in driving down the number of anesthesiology mishaps.

Perhaps the biggest impact Moore had on the medical profession came in his most famous case—one that he won, but not in the way he wanted. In March 1984, Libby Zion, an 18-year-old freshman at Bennington College living at home under the college’s work-study program, was taken to the hospital by her parents on a Sunday night because of a high fever. She died the next morning. After the Zions’ original lawyer was disbarred, Moore took on Zion v. New York Hospital, which finally came to trial almost a decade later.

During the trial, from November 1994 to February 1995, Moore highlighted what he viewed as a growing problem in our nation’s hospitals: overworked and undersupervised medical residents. Although originally set at $750,000, the Zions were awarded only $375,000, due in large part to questions about the plaintiff’s drug use—an outcome Moore did not find favorable.

The case may not have given much peace to the Zion family, but it did help usher in a series of medical reforms. Legislation was introduced that reduced the maximum number of weekly hours residents could work (from 100 to 80), mandated one day off per week, reduced the number of patients cared for by a single resident and installed a float system in many hospitals that allowed interns to cover for one another. The legislation came to be known as “Libby Law.”

Moore and Livingston’s clients have gone on to do remarkable things to help advance the cause of people with disabilities. Richard Ellenson’s son Thomas suffered extensive diminution of oxygen when he was born in September 1997, which caused severe physical injury. The Ellensons met with the three biggest personal injury firms in New York City but knew instantly that they had their lawyers after meeting Moore and Livingston.

 “Tom and Judy learned everything about Thomas,” Ellenson says. In assessing what Thomas would need to obtain the highest quality of life, Moore and Livingston addressed Thomas’ physical, emotional and educational needs, the technology and support he would require and most important, the possibilities of where Thomas could go in life rather than what his disabilities prevented him from doing. The Ellensons eventually reached a favorable settlement in their case, and Richard Ellenson, a former advertising executive, went on to found the company Blink-Twice, which produces the Tango, a revolutionary device that helps children like Thomas communicate with teachers and peers. It has been extremely successful in schools around the country.

Moore, who commonly sleeps two to three hours a night when he’s on trial and still runs five miles a day, says he’s probably tried more med-mal cases than anyone; Livingston has a near-perfect record in her cases. “Tom is the fire and Judy is the oxygen,” Ellenson remarks.

Their devotion to a case is a full-time commitment, which makes it all the more remarkable that the pair has raised three children.

When the kids were young, Livingston tried to keep work and home life separate. Moore, less able to contain himself, would talk about his workday to anyone who would listen. In most cases, this was an infant; some of it rubbed off. When the couple’s first son, Jim, was 2½ years old, he didn’t like his father’s response to a particular question, and said, “Just answer the question yes or no.”

Ultimately what drives Moore and Livingston is the notion that the law they practice is the exact opposite of a business. “We have been singularly privileged to represent people in an area where they are almost useless to help themselves,” Moore says. “We have been given this grace, to be able to stand in and speak for people who can’t do anything for themselves, and to give a measure of quality of life and dignity to what they once were, what they’ve lost and now what they can re-achieve in a different way.”