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?

According to data compiled by the Colorado Trial Lawyers Association, a group representing plaintiffs' attorneys, the state now ranks near the bottom in several multi-state surveys that compare the number of automobile lawsuits filed per capita. Attorneys who represent accident victims in this state claim they battle a system that favors the defense; at trial, no one is allowed to mention whether a defendant even has auto insurance, which leaves the jury with the impression that the victim is going after some ordinary joe rather than a multi-billion-dollar corporation. Thanks to "insurance-industry propaganda," the attorneys say, jurors also tend to regard personal-injury lawyers as greedy ambulance-chasers.

"Here's the effect of the propaganda," says Denver personal-injury attorney Steve Kaufman. "People believe that everybody who sues is looking to win the lottery and that all these frivolous lawsuits are driving their premiums up. It's ridiculous. Compared to when I first started practicing twenty years ago, you settle cases for half of what you used to. You work on a contingency basis, so why would you ever take a case that was frivolous? The costs alone could wipe you out."

Lawyers who take on a behemoth like State Farm recognize that the odds are against them. They shell out for doctors, accident investigators and expert witnesses up front, knowing they will recover their costs only if they win. They draft demand letters, knowing the other side is in no hurry to settle. If they make it to trial, their expenses balloon, and if they lose, their client is on the hook for the defense's costs -- the insurance company's attorney fees, the company's doctors and expert witnesses. And most of the time, they will lose: Sixty percent of the civil trials in Colorado last year resulted in defense verdicts.

 
John Johnston
 
Never give in: Attorney Greg Gold took on a minor accident case -- and endured five years of costly litigation and nasty tactics.
John Johnston
Never give in: Attorney Greg Gold took on a minor accident case -- and endured five years of costly litigation and nasty tactics.

The McClelland case has problems, Gold realizes. It is not a high-speed crash. No totaled car, no trip to the emergency room. No documented loss of consciousness. But Gold knows his client is badly hurt, especially after her own insurance company's doctor, neurologist Jonathan Woodcock, vouches for the brain injury. "That, to me, was the confirming diagnosis," Gold says.

Spitz's concurring diagnosis strengthens his resolve. The CU professor is a well-respected researcher, not someone who routinely testifies in insurance cases for one side or the other. ("I usually run in the other direction," Spitz says. "Maybe once a year an attorney calls me up with something that sounds interesting, and I say I'll look at the case.") But Gold's client will also have to undergo intensive scrutiny by doctors retained by State Farm, doctors who have a long track record of testifying that people aren't injured as badly as they claim or that their injuries are caused by something other than the accident at issue. And McClelland's rapidly unraveling life offers plenty of raw material for anyone looking to develop alternative theories about the nature of her problem.

In April 1998, a year after the accident, McClelland joins her mother, sister and others at a LoDo bar to celebrate a relative's birthday. She's always been a light drinker, and no one pays much attention when she lingers as the party breaks up. She is found hours later in Castle Rock. Her car is eleven miles away. She has no idea of where she is or how she got there, and her blood-alcohol level is above the legal limit. Her doctors suspect she may have had a seizure, the result of an interaction between her epilepsy medication and alcohol.

Two months later, McClelland tells her therapist that she's thinking about killing herself by overdosing on her medications. She had taken on a new job as a receptionist that spring and failed miserably. She'd also tried to volunteer at a hospital, spent all the money she had on a uniform, and then was told at the last minute that she'd need a doctor's release before she could proceed. She's moved out of her mother's house and is living in her ex-husband's sister's basement and feels like she is a burden on everybody she knows.

"I had no income and wasn't taking care of my kids very well," she recalls. "It was everything. Not having groceries. Being too embarrassed to tell people. Losing jobs. And my EMT [emergency medical technician] license was about to expire."

The therapist persuades her to check into a psychiatric hospital for several days. It's the beginning of a turning point in her treatment, but the road is a long one. Seven months later, she returns to the hospital for help battling her growing dependence on Dilaudid, a powerful narcotic that had been prescribed as a temporary painkiller for her migraines.

"I was shocked that they had started her on something so strong," says Janet Morgan, who'd worked as a substance-abuse counselor in an outpatient clinic and saw the telltale signs of addiction surfacing in her own daughter. "We talked about how she would need to go into treatment. We saw it all the time at work, how everyday working people would have to detox off prescribed medication."

McClelland emerges from rehab clean but hurting. "I didn't feel better, by any means," she recalls. "I was in a lot of pain. It's like when people stop drinking. It was a lot easier to take drugs and not care, not have to deal with pain management."

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