Hidden Damage

The insurance company claimed that Sunserea McClelland's problems were all in her head. She knew better. But would a jury believe her?

But Gold soon discovers that there is nothing simple about McClelland's case. It's the kind of claim that most plaintiffs' lawyers dread: a case of hidden damage that will spawn five costly years of litigation, involving a gantlet of doctors, surprise witnesses and the nasty hardball tactics of one of the richest and most powerful insurance companies in the country. The kind of high-stakes case that can drain a young attorney's financial resources, test his resolve -- and drive his client to the brink of despair.

During her initial meeting with Gold, McClelland talks more about her need for a car than any injury she may have suffered from the accident. But shortly after that visit, she tells her mother, Janet Morgan, about the odd spells she's having. She says she is "losing time" -- she's watching television or fixing a sandwich, and the next thing she knows, several minutes have passed. It's like she goes away somewhere, comes back, and doesn't remember a moment of the trip.

Morgan thinks the time lapses sound like possible seizures. She urges her daughter to see a doctor. McClelland keeps putting it off. Then one morning she finds herself on the floor of the bathroom, two hours late for work, with her kids shouting at her to wake up.

Epileptologist Mark Spitz used a cow brain to explain McClelland's injury to the jury.
John Johnston
Epileptologist Mark Spitz used a cow brain to explain McClelland's injury to the jury.
Switching sides: Attorney Tom Metier used to defend insurance companies. Now he goes after them.
John Johnston
Switching sides: Attorney Tom Metier used to defend insurance companies. Now he goes after them.

She starts suffering from blinding headaches, more savage and persistent than anything she's ever experienced. And she's getting into trouble at work, too. Her boss wants to know why she hasn't done this project and that one, but McClelland has no memory of ever being asked to tackle the assignments. She's convinced the boss is out to get her.

In June, more than two months after the accident, McClelland finally goes to a local emergency room, complaining of recurrent headaches. "She denies any recent head injuries," the attending physician notes. "She states that she was involved in a motor vehicle accident in March but has not had any symptoms until a week ago...I am at a loss to determine a specific etiology for her complaints."

McClelland is referred to a neurologist, Douglas Redosh. On her first visit, she neglects to mention the accident. Redosh suspects a possible hemorrhage or aseptic meningitis. "A third possibility," he writes, "is that this is an onset of migraine and temporal lobe seizures at the same time, although that would be unusual." He orders various diagnostic tests, including an MRI brain scan, which reveals nothing abnormal.

McClelland's sister comes with her on her second visit to Redosh a few weeks later. Shannon explains that Sunserea is now having panic attacks and called her two days ago, frantic that she couldn't find her driver's license -- then claimed to have no recall of the entire episode. Shannon also muses that the headaches seem to have started after the accident; this is the first Redosh has heard of the collision. Based on the new information, he is now of the opinion that McClelland has suffered a concussion, at the very least, from being rear-ended. "This whiplash injury could explain all her problems," he writes.

As Gold learns of his client's blackouts and obtains copies of her medical records, he begins to suspect that McClelland is suffering from much more than a concussion. Subsequent referrals to other experts -- ultimately, McClelland will be examined by more than forty physicians and therapists -- produce an increasingly grim picture.

The most revealing reports, Gold believes, come from an independent medical examiner hired by McClelland's own insurance company and from Mark Spitz, a neurologist at the University of Colorado Health Sciences Center and one of the most prominent epilepsy experts in the Rocky Mountain region. According to them, McClelland has suffered a brain injury. Spitz is also convinced that the seizures represent the onset of traumatic epilepsy, a direct result of the hidden damage in her head.

A Different Person

It isn't clear if McClelland actually struck her head after her car was hit from behind or if she lost consciousness; often, the person who suffers such a blow is the last to know. Her doctors think it's likely that she struck the back of her head on the headrest. But in any event, such a blow isn't necessary to cause injury. Even in a low-impact crash, the whiplash motion of the head -- abrupt acceleration forward, then snapping back -- can play havoc with the gray matter inside. According to Spitz, the possibility of injury has more to do with the angle of impact than the amount of force involved.

"You watch a football game, and it seems the collisions are much worse than what you have here," Spitz notes. "But you have to understand the physics of this kind of injury. Your brain is relatively soft. It's about the consistency of liver, and it's sitting in this bony skull. The tops and sides of the skull are fairly smooth, but the underside -- the area just above your eyeballs -- is rough and coarse. When your head strikes something, the brain can bounce inside the skull, and it gets bruised. The underside is especially vulnerable."

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