On July 30, 2011 Anita Castro was seated on a patio having lunch after golfing at a club in Saratoga when a busboy decided to move another table and in the process of lifting it a table leg struck her in the head and face.

The veranda at Saratoga Spa Golf, where this incident took place:

Saratoga Spa Golf

Dazed and in pain, Ms. Castro, then 49 years old, was taken by ambulance to the hospital where she was treated and evaluated for a head contusion and a cervical strain. Ultimately, she developed permanent complex regional pain syndrome (“CRPS).

CRPS-Symptoms-CRPS-Signs-RSD-Signs-RSD-Symptoms

In her ensuing lawsuit against the golf club, the trial judge directed a verdict of liability against the defendant and then the jury awarded pain and suffering damages in the sum of $300,000 ($200,000 past – four years, $100,000 future – 28 years). The trial judge agreed with plaintiff that the award was inadequate and he ordered an increase to $900,000 ($300,000 past, $600,000 future), an amount that has been affirmed on appeal in Castro v. Professional Golf Services, Inc.  (4th Dept. 2016).

In addition, plaintiff was awarded and the appellate court approved past and future medical expenses in the sum of $307,850 ($100,000 past, $207,850 future).

The appellate court decision does not at all disclose the nature of plaintiff’s injuries. Here are the injury details:

  • onset of vertigo on day of accident followed by tremendous, debilitating migraine headaches diagnosed as post-traumatic migraine headaches
  • gradual closing of jaw – within first month, it was virtually closed
  • temporomandibular joint (“TMJ”)  disorder
  • TMJ reconstructive joint arthroplasty surgery (also known as fat grafting surgery) – to remove TMJ discs and stabilize with fat grafts
  • Ketamine infusions, nerve blocks and injections
  • complex regional pain syndrome (“CRPS”) –  permanent

TMJ

The defendant contended that plaintiff’s extremity symptoms, TMJ and migraine headaches all predated the 2011 accident and that prior treatment records made a mention of possible CRPS.  Furthermore, a defense medical expert opined that plaintiff’s multiple complaints of pain do not have an organic (or physical) basis.  In 1983, Ms. Castro underwent cervical fusion surgery and seven years later she had a car accident that aggravated her old neck injury and also caused a mild concussion. In the early 1990’s, she had two car accidents, one causing low back pain, the other a head injury and neck pain. Then, in 1997, she had a slip and fall incident in which she again aggravated her neck injury and sustained a new injury to her lower back leaving her with a frozen shoulder. At the time, she attributed several symptoms to the slip and fall accident, including pain in all extremities. She was  eventually medically determined to be permanently disabled and no longer worked.

Plaintiff stressed that several years after being declared disabled in the late 90’s, plaintiff returned to an active lifestyle. She became very involved in a dance studio and enjoyed golfing four times a week as well as hiking and kayaking. Since the accident in 2011, though, Ms. Castro’s physical condition greatly deteriorated and she suffers from continuing and debilitating migraine headaches, wears special glasses due to extreme light sensitivity, can only eat soft foods, endures constant pain throughout her body especially in her bones and joints, is extremely weak and requires a cane to walk.

Inside Information:

  • In his closing argument, defense counsel suggested an award of $150,000 for past pain and suffering and $100,000 for the future. Plaintiff’s attorney did not suggest or even mention any amounts for his client’s pain and suffering. He simply asked the jurors to “take into consideration the pain and suffering”endured, and her loss of enjoyment of life, both in the past and permanently in the future.
  • A total of nine physicians testified (seven for plaintiff, two for the defense), including plaintiff’s expert Mark A. Piper, M.D., D.M.D, one of the world’s leading physicians in the treatment of CRPS and its association with TMJ. Plaintiff’s TMJ physician and defendant’s dental expert both recognized Dr. Piper as an expert in CRPS and TMJ and both had attended his lectures.
  • The jurors viewed a videotape of plaintiff taken by a friend one month before her 2011 accident. It showed her playing with her nephews on a putting green and the trial judge described it as impressive evidence of the ” … striking change in the plaintiff’s physical appearance and disabilities.”

Blog posts may be a little light here at the New York Injury Cases Blog this week, as I head out for a bit of road trip to guest blog at Point of Law.com

Point of Law.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute. Focusing on America’s civil justice system, the site includes original discussions featuring some of the nation’s top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topical legal news stories.

Many thanks to Point of Law’s editor, the eminent Walter Olson, for the opportunity to relate my practitioner’s perspective.

Walter is a commentator, author and critic best known for his work in the American litigation system. In addition to editing Point of Law, he founded and continues to run the popular Overlawyered.com weblog. Launched in 1999, Overlawyered is the oldest and most widely acclaimed blog about law.

Both Point of Law and Overlawyered are daily reads for me, and I’m hoping to add to the group’s valuable discussion.

Welcome to Blawg Review #209.

This will not be our typical post where we discuss and analyze pain and suffering verdicts in personal injury cases; instead, in the long line of blawg review hosts before us, we have been asked by the good folks at Blawg Review, to review what some of the best law related bloggers have written in the last week and, gulp, to do so in a "creative" fashion. Here goes.

Ghochfelder.jpgBy happenstance, I was assigned April 27th as my date to publish this piece. It so happens that April 27th – in 1922 – was when an American hero was born. He grew up in New York in modest economic circumstances, left college to enlist in the armed services and on February 19, 1945 landed on a small island called Iwo Jima and fought there as a United States Marine in the bloodiest battle of World War II.

I’m getting ahead of myself a bit. For now, all you need to know is that our hero made it through Iwo, lived a magnificent and honorable life and died an old man on September 20, 2004. His name was J. Gene Hochfelder, he  was my father and this blawg review is dedicated to him.

<!–Get Adobe Flash player<!–

Dad grew up on Long Island where he graduated from Lawrence High School and then enrolled at University of Pennsylvania to study business. He married his high school sweetheart, Patty Beldoch (then at Penn State). World War II then erupted and changed everything.

Then as now, those hoping to become one of  "a few good men," trained at the Marine Corps Recruiting Depots at Parris Island, South Carolina and San Diego, California. From those two states, many years later, have come some important blogs I follow and some other significant personal connections.

  • In 1974, I enrolled at U.S.D. School of Law and just this year came to know and read Prof. Adam Kolber’s Neuroethics & Law Blog (where the professor recently discussed emerging theories on pain detection that may prove to be hugely important in personal injury trials).
  • California is also the home of Michael Ehline’s Los Angeles Motorcycle Accident Lawyers blog  and he gets props from me because he’s a proud former Marine. Semper Fi.
  • Also on the West Coast is Aviation Law Monitor Blog where Mike Danko takes on the terrible safety record of the huge helicopter tour business in Hawaii (where Dad last trained before shipping out to Iwo Jima). And over at Day on Torts, John Day takes a look at the claims that arise in crashes of medical helicopters.

And from South Carolina comes Trial Lawyer Resource Center, a magnificent blog with top trial lawyers from around the nation contributing. Military personnel in South Carolina, along with all other states, are entitled to many forms of legal aid but there they receive among the best, as described by  Lawyers for Warriors a wonderful blog whose motto is "no warrior shall lack legal aid."

After their relatively simple, easy, stress-less, physically undemanding training, Dad and the rest of his 5th Marine Division shipped out to Iwo Jima.

Dad saw compatriots blown up right in front of him, held the hands of dying men, crawled for days in the sulfur and led his unit as a lieutenant. On one particular night, Dad came upon enemy troops preparing to attack the infirmary. He shot one dead right in the head, dropped his pistol and grabbed a rifle to kill another. Then, he gathered 20 Marines and engaged in a firefight with the remaining Japanese and put down the threat with no U.S. casualties. The next morning, he led a group climbing into and crawling along a sulfur pit to find any remaining enemy soldiers and extinguish them and their maze of tunnels. For his valor, Lt. J. Gene Hochfelder was awarded the Silver Star, our country’s third highest battle medal.

After 36 days, the battle was won. But with tragic costs: 6,800 American deaths and 26,000 Americans wounded.

Here are the men from Dad’s regiment "relaxing" after Iwo was secured:

iwo-group.jpg

The Battle of Iwo Jima was particularly tragic for Dad’s 1st Battalion, 26th Regiment, only 17 of 37 officers made it off Iwo Jima alive (and six of those were replacements).

Here is a photo taken of the 17 survivors shortly after returning home:

The flag that was raised on Mt. Suribachi in the early days of the campaign was photographed and has become a national symbol signifying our victory.

It was a simple war wasn’t it? It was clear who were the good nations and who were the evil ones. The “enemy” was well defined. There was little domestic protest of any kind. Years later came Vietnam and now Iraq and we see all kinds of questioning about American motives and methods, discourse and blogging about things like who and what are enemy combatants, when may we send armed forces into another country (that has not declared war on us), what are the limits of interrogation and when is it impermissible torture. Bloggers have been very active and outspoken on these matters, for example:

  •  Hugh Hewitt at Townhall and John Hinderaker at Powerline, both of whom weigh in on the so-called "torture memos" (the Justice Dept.’s memos on the legality of interrogation techniques such as waterboarding). They believe this was good lawyering and that many Congressional critics were fully aware of the tactics and are therefore hypocrites. I think Dad wold have admired Messrs. Hewitt and Hinderaker for their stand. And he would have agreed with them.
  • SCOTUSblog  (the ever valuable spot to learn everything about about the U.S. Supreme Court and its cases) discussing oral arguments in a case involving hostage-taking and torture in the Saddam Hussein regime and whether and to what extent U.S. citizens may maintain lawsuits against Iraq for damages
  • Balkinization – where St. John’s University School of Law Professor Brian Tamanaha says that the Justice Dept. lawyers were the critical players in the entire "torture enterprise," acting manipulatively and in bad faith.
  • Prawfs Blog – where Mark Drumbl (Washington and Lee Univ. School of Law) wonders if history will conclude that torture has made us safer
  • The Spine – where Martin Peretz is "mystified why putting a terrorist in a box with a caterpillar is thought of as illegal …."

After the war, Dad settled in Levittown, New York, worked for his father in the children’s coat business and eventually founded his own firm, Bogene, Inc., which manufactured and sold plastic storage good such as garment bags and shoe bags. He began as a very small businessman, worked exceedingly hard and eventually sold the company in 1969. He invested nearly all of his sale proceeds into his father-in-law’s business, Beldoch Industries Corp., a women’s clothing manufacturer (where he’d work until 1997 with three of his five sons).

In his business dealings, Dad hired many lawyers to advise him on issues such as incorporation, employment contracts, unions, taxation and intellectual property. I was the point man for all litigation and, though there was not much, when he was sued it was each time costly and frivolous. He’d have been very interested to read Walter Olson’s blog Overlawyered where this week he tells us about a lawsuit by an Ohio couple who own a grist mill said to be haunted. They sued the publishers of a book and a web site for increased costs they incurred when curiosity seekers came as a result of the publicity.

As the owner of a small business, Dad would have been aghast at the haunted house lawsuit and he would have agreed with much of what the U.S. Chamber of Commerce puts out at its Institute for Legal Reform where this week as always they report on what they call lawsuit abuse.

He actually despised litigation; he’d had enough of all out war (not to mention the financial costs). Instead, Dad had become an excellent negotiator and would have greatly appreciated learning about mediation from blogs likes  Victoria Pynchon’ s Settle It Now.

And Dad wouldn’t have missed Professor Bainbridge whose widely read blog on the law and economics of public corporations is taking a dim view of proposed legislation to regulate executive compensation.

Now Dad was no ideologue mind you and he was famous for insisting we look at the "other side" of issues and consider different opinions. So TortDeform Blog is a blog site he’d have insisted I read (and I do) and this week they focus on the lobbying efforts on behalf of the "little guy" spearheaded by outstanding personal injury attorneys such as Eric Turkewitz at New York Personal Injury Lawyer. And then there is the Torts Prof Blog where, natch, we get scholarly opinions and information about torts and litigation – without having to go to class – from some of the nation’s top law professors. Just this week, Professor Robinette abstracts an academic paper on intent in tort law.

I  helped Dad select non-litigation counsel for all of the many other law-related issues that came up. Had the blogosphere existed back then, I would easily have found experts in each of these fields. Here’s some of the expertise that’s been published just this week:

  •  Wall Street Journal’s Business Law Blog – where he would have been upset to learn of a story of disloyalty with executives from Hilton Hotels being charged by Starwood Hotels with theft of corporate documents
  • Tax Vox  – timely tax information from a pair of think tanks, this week with a timely discussion of the arguably abusive policy of perks for corporate executives known as "gross ups"
  • China Law Blog – where Dan Harris is discussing the skyrocketing number of lawsuits against foreign companies doing business in China (like Dad’s did)
  • The Trademark Blog – usually discusses more mundane issues involving disputes between fashion houses and design companies but now alerts us to a lawsuit charging infringement by an online virtual reality firm illegally selling Taser guns (how modern!)
  • Counterfeit Chic – speaking of trademarks (and copyrights), this week we learn from Fordham University Law School Professor Susan Scafidi that fashion designers (including those who designed the First Lady’s inaugural wardrobe) met on Capitol Hill to press for the passage of new laws to protect registered fashion designers

It was in the 1970’s that Mom got cancer. She was a free spirit, and after traditional medicine failed she sought alternative treatment (including a clinic in Germany with reggae star Bob Marley) but ultimately the scourge that is cancer took her life in 1982. Was she treated properly by all of her physicians? Did they delay the diagnosis of cancer when they could have saved her? I don’t think so and I hope not. Had I thought otherwise, I could have turned for advice either to the aforementioned Eric Turkewitz or other bloggers and top medical malpractice lawyers such as Andrew Barovick at New York Medical Malpractice Law Blog or Gerry Oginski at NY Medical Malpractice Blog.

Dad’s own health began to deteriorate with heart troubles that led to a bypass surgery in 1987, a stroke in 1992, lymphoma in 1993, a broken hip in 1995 and then in 2002 he had another stroke that left him wheelchair bound for the rest of his life. He was unable to feed himself, read or see much at all. He never complained, never was angry, always reveled in wonderful memories and always had the support and love of five sons who owed him more than we could ever repay. 

He did fall a bunch of times – the elderly are so prone to that – and required orthopedic surgery. Now, even surgeons are blogging! Howard J. Luks, M.D. publishes a blog on orthopedic and sports medicine that personal injury lawyers are consulting with frequency for its cutting edge information. And Dad would have been quite interested in the Drug and Device Law blog (what with a pacemaker in him and a dozen daily prescription drugs to keep him alive) – now discussing product liability. Speaking of medical devices, Pop Tort, singing the praises of lawsuits as a supplement to federal regulation, is discussing the FDA’s "all hands meeting" regarding its strategic direction of the medical device approval process and is urging that a new medical device law be passed soon.

By the way, Dad knew that my daughter would graduate from Lafayette College this May and perhaps enter the fashion business. He was so proud of her. And he also knew that my son was a medical student at N.Y.U. School of Medicine and was interested in orthopedics. Dad would have been thrilled to learn that he graduates in May and on July 1st he will become an orthopedic surgery resident at the world renowned NYU-Hospital for Joint Diseases.

We were fortunate to be able to afford to keep Dad at his own home and out of a nursing home. He had great home care around the clock along with an extremely supportive extended family – including my lovely wife, an outstanding physical therapist, who helped Dad walk when he could and learn exercises when they were helpful. The tales I hear about terrible conditions in nursing homes from many people, including bloggers such as Jonathan Rosenfeld at Nursing Homes Abuse Blog (disclosing a recent report on delays in treating hip fracture patients), are frightful indeed.

As Dad got older, we had to deal with so-called elder law issues – health care proxies, powers of attorney, health insurance, Medicare and the like. I knew a little about these issues but there are so many who seem to specialize in them now and they too are bloggers:

  • Medicare Update, an excellent blog by Chicago attorney Michael Apolskis focusing on the health care provider side and Medicare laws and financial issues
  • KevinMD, perhaps the most widely read medical blog, where Dr. Pho recently addressed the issue of health care insurance as it relates to medical care and the enactment of laws mandating universal coverage
  • GruntDoc, where a Texas emergency physician says he’d be OK with universal health care only if Medicaid and Medicare are drastically reformed. Did you know that GruntDoc is so named because he was a doctor for a USMC infirmary and the Regiment Surgeon for the Fifth Marine Division? You do now.
  • Quanta Vie (f/k/a Symtym), by another emergency physician, Tim Sturgill, who points out what’s wrong with concierge medicine

Dad had amassed a decent sized estate and wanted to be minimize taxation and be sure there were no disputes after he died, so he consulted with top notch estate planning lawyers often. There are several who blog but you can’t go wrong with New York Estate Litigation Blog from the lawyers at Farrell Fritz.

Here’s another April 27th coincidence and a very timely one. You surely know all about the pirates incident off the coast of Somalia April 8th [if not, go right now to Modern Day Pirate Tales, a serious blog by a Canadian journalist devoted to the world of piracy – really!] and you probably know that piracy in that region dates back hundreds of years and more. But did you know that on April 27, 1805 the U.S. Marines attacked the shores of Tripoli in response to attacks by Barbary Coast pirates? The Volokh Conspiracy has more on this, expertly set out as always. Now you know where the lyrics "From the halls of Montezuma to the shores of Tripoli" come from.

Here’s a depiction of that famous battle in 1805 – note the Marines charging:

Speaking of the captured Somali pirate – what should be done with him? Surely he should be executed, right? Should he be shot summarily? Or walked off the plank?  What laws apply – U.S., Somalia (I wonder what kind of legal system they even have) or international?

  • Wall Street Journal’s Law Blog notes that U.S. law applies but that the statute in question defines piracy according to the "law of nations" and that life imprisonment is the penalty.
  • Brooklyn Law School weighs in reviewing these issues quite well with reference to several primary sources of interest.
  • Above the Law suggests that Kenya has emerged as the chosen venue to try piracy cases.
  • If you want to hear, rather than read about these issues, then listen to the podcast at Legal Talk Network hosted by Law.com bloggers J. Craig Williams (of May It Please The Court fame) and Robert Ambrogi (of Robert Ambrogi’s Law Sites fame).
  • Law Professor Glenn Reynolds (Univ. of Tennessee) of Instapundit fame notes that Gen. Petraeus has weighed in and suggests that piracy incidents can be substantially avoided if shippers place armed guards on board (resisted so far because some ports would deny entry).

After Dad died, I came across a song that reminds me of some of our time together. You may like it (and you may even know of it): "Dance With My Father" by Luther Vandross. In it [listen here], the singer remembers how his late father would play with him, spin him around and dance with him (and his mother). Mom was long gone when Dad was dying but whenever I lifted him from his wheelchair he’d pat me on the back and say  "John, we’re dancing." So I get a little wistful whenever I hear the lyrics: "If I could get another chance, another walk, another dance with him I’d play a song that would never ever end."  

Dad’s most famous saying was "work hard, play hard and enjoy." I’ve worked hard to present you with an informative and intriguing blawg review. Now, I’ll go play hard. Please enjoy reading.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.