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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?

The education begins during jury selection. Metier is looking for people willing to listen. "Have you done things in your life you don't want to be judged by?" he asks. There is, of course, no mention of State Farm or whether either party has insurance; all of the attorneys are required to pretend that this matter is strictly between Sunserea McClelland and Charles Goodwin. Six jurors and an alternate are picked, including an epilepsy patient of Dr. Spitz's.

Opening statements, and the battle is joined. Witnesses disagree about who was responsible for the accident and how much force was involved. A mechanic who worked on McClelland's car insists that it took "a lot of force" to bend the frame of the Eclipse, an opinion he clings to under withering cross-examination by Rodman about his credentials as an expert.

"Doers do, and those that can't, teach," the mechanic says.

 
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 doctors' testimony is complex and time-consuming. When Spitz takes the stand, Metier hands out rubber gloves to the jurors. Then he presents them with a fresh cow brain on a platter, so that they can touch it and marvel at how delicate it is, while Spitz explains how a low-speed collision can alter someone's life forever.

One member of the dream team cannot be summoned to testify. In March, Angelika Voelkel pleaded guilty to two counts of failing to file a federal income-tax return and was sentenced to a year in federal prison. A videotaped deposition is used instead. Gold and Metier are not allowed to mention her conviction, but it doesn't appear that the jury cares much for her video analysis of McClelland, anyway.

Bit by bit, Gold and Metier chip away at the alternate theories of their client's injuries proposed by the defense. Janet Morgan takes the stand to lay out a chronology of the changes she observed in her daughter and to explain about the Dilaudid and the alleged child abuse. Other witnesses describe the fall from the ambulance and its lack of consequence.

A rehabilitative specialist explains that McClelland may be able work at a low-stress job, such as cake decorating, for up to two hours a day. An economist presents computations that show how much McClelland would have earned over a lifetime as a paramedic and how much less she can expect to earn as a ten-hour-a-week cake decorator.

Larry Powell, McClelland's former supervisor at Broomfield Ambulance, puts to rest any suggestions that she is malingering. The woman he knew, he testifies, would do almost anything to be a paramedic, and she was damn good at it.

("I was outraged that they would accuse her of trying to get a free ride," Powell says today. "She was no more trying to fake something than to fly. It broke her heart, not to come back to work after the accident. All of us who do this kind of thing love it; it's something you eat and breathe. For her to be denied that, it's just a crime against nature. She was made for this stuff.")

McClelland herself misses most of the trial, a circumstance that doesn't go unnoticed in the jury box. Metier explains that the lights and the noise of the courtroom overwhelm his client, that she can take it for only a few hours at a time, but there are other reasons, too. McClelland doesn't want to hear the defense doctors talk about her, to sit there meekly while her life is put on display for strangers to look at and judge.

But finally it is her turn to testify, and there is no getting around it.

Metier knows that head-injured clients can be unpredictable in court. The night before, when he'd tried to prepare McClelland for her testimony, he says, "I would ask a question and get an answer to a different question. She doesn't perceive where you're going with the questions -- which makes her a dream for the defense, because she could be inconsistent in her answers."

But Metier has found that by using specific word associations, he can get "this beautiful testimony that would tell her story." So when McClelland takes the stand, he explains to the jury that he's going to question her a little differently than he did the other witnesses.

"Sunserea," he says, "tell us what the word 'respect' means to you."

McClelland talks about how she's lost her self-respect. She talks about being a burden to people. She talks about how her life was coming together before the accident, and how it's all fallen apart. None of it sounds rehearsed.

At one point, she turns to the jurors and apologizes for being a burden, for taking their time to hear all of this. It is a completely spontaneous remark, and Metier recognizes that his client has connected with each of them, one human being to another.

On cross-examination, Rodman points out contradictions in previous statements McClelland has made. He asks her to review documents. The questions go on and on. She twitches and struggles to answer, and the jury senses her fatigue. Although it's probably not Rodman's intention, he's providing the panel with a dramatic demonstration of the nature of her injury.

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