By Michael Roberts
By Melanie Asmar
By Michael Roberts
By Michael Roberts
By William Breathes
By Michael Roberts
By Michael Roberts
By Michael Roberts
Some calamities begin with a letter, others with a phone call. An argument. A drink. A wrong turn. In the case of Sunserea McClelland, catastrophe comes at her from behind one snowy spring morning. She never sees it coming.
Seconds later, her whole world turns upside down. All changed, changed utterly. And she doesn't even know it yet.
On April 10, 1997, the 24-year-old assistant office manager is heading for work, snugly belted in her Mitsubishi Eclipse. Her sons, six-year-old Jaysun and five-year-old Josh, are in the car with her, bound for school and daycare. Coming down a hill on West Dakota Avenue, on the edge of the Green Mountain subdivision, McClelland sees a truck at the bottom of the hill fishtailing on the snow-slicked road as it heads toward her. She slows down, then stops.
Behind her, a Volkswagen Jetta driven by 46-year-old Lakewood resident Charles Goodwin fails to respond quickly enough to McClelland's braking maneuver. The Jetta rear-ends the Eclipse, at a speed later estimated to be under five miles an hour.
In the annals of Denver's traffic mayhem, the collision scarcely qualifies as a fender bender. There isn't much apparent damage to the bumper of either vehicle. The accident report is exactly one page long; Goodwin is cited for driving "too fast for conditions." None of the occupants of either car goes to the hospital that day. But even moments after the accident, there are signs that something is wrong with Sunserea McClelland.
Goodwin will later testify that the driver of the Eclipse kept asking, "What street is this?" It's an odd question, since McClelland is only a block from her apartment when the accident happens, on a street she drives all the time.
McClelland uses her cell phone to call her sister, Shannon Disheroon, and tells her about the collision. "She was in a panic and not making sense," Disheroon recalls. "She hung up on me. I called her back, and she hung up on me again."
McClelland doesn't remember much about the accident. She remembers Josh crying out, "Ow! My neck!" She remembers arguing with a paramedic about her correct age.
She does not remember going to a chiropractor that day, complaining not only of neck pain but of blurred vision, nausea and headaches -- classic symptoms of a closed-head injury. She does not remember calling her sister a few hours later to tell her she'd been in a crash, only to be reminded of the previous phone call, which she'd already forgotten that she'd made.
Almost everything that happened that day is a blank to her now, and has been for some time.
"I can still see some kids waiting for the bus, right before the accident," she says. "But other than that, I don't remember much. I just know I got hit."
A Simple Case
It is several weeks after the accident before McClelland realizes that something bad is happening to her. At first she's too busy to pay it any mind.
Named after an Apache maiden in a Jimmy Stewart Western, Sunserea grew up dreaming of a career in medicine. Her mother was a nurse, and Sunserea started volunteering in nursing homes and hospitals as a teenager. After she got to know some of the ambulance crews and their pulse-pounding, full-throttle approach to emergency work, she set her sights on becoming a paramedic.
The dream was sometimes elusive, yet she hung on to it. She dropped out of Edgewater's Jefferson High in her senior year to marry her boyfriend, Jay McClelland. The marriage produced two sons, but by 1994, Sunserea and her husband had separated. She got her GED and went looking for employment. At the time of the accident, she was working three jobs. Five days a week, she worked in the office of an auto-glass shop. Three mornings a week, she came in early and cleaned the shop.
And every other weekend, when their father took Jaysun and Josh, McClelland volunteered at Broomfield Emergency Ambulance as an assistant to the paramedics. She drove an ambulance, set up equipment, assisted with patients, took classes and certification programs, and grabbed as many shifts as she could get. Week by week, she was getting closer to becoming a full-fledged paramedic herself.
"We had one of the toughest training programs in the country, and she cleared it faster than anybody I'd ever had," says Larry Powell, McClelland's former supervisor at Broomfield. "It's an incredibly complex job, and she was great at it."
But McClelland never returns to Broomfield Ambulance after her car accident. Her days of checking a patient's vital signs while immobilizing his spine or driving a cardiac case through heavy traffic are over.
In late April 1997, two weeks after the rear-ender, McClelland goes to see a personal-injury attorney for help in getting her car repairs paid and obtaining a rental car. Despite the lack of visible damage, the Eclipse's frame has been bent by the impact of the accident. The attorney steers her to the youngest member of his firm, 26-year-old Greg Gold.
To Gold, the case seems routine. He has been out of law school less than two years, and this is the sort of mundane paperwork he expects to be thrown his way. A minor collision, some possible whiplash, some car repairs. A nice, simple case. He tells McClelland he will get right on it.
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.
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."
Compared with some closed-head injuries, McClelland's is a mild one. To a casual observer, her speech, coordination and general comportment seem quite normal. But testing reveals a wide range of cognitive problems, evidence of serious damage to the underside of the frontal and temporal lobes -- areas of the brain that control memory, number skills, judgment, concentration, the ability to multi-task and a host of other functions essential to everyday life.
The epilepsy presents a further complication. Most cases of epilepsy, a condition that disrupts the normal electrical activity in the brain and causes seizures, have no known cause. Spitz estimates that fewer than 10 percent of the cases result from a specific trauma, such as a car accident, and in those, the seizures may not start until months after the trauma; the epilepsy is a by-product of a faulty healing process rather than the blow itself. (Studies of head-injured war veterans, Spitz notes, indicate that there may also be a genetic component that helps determine which cases develop into epilepsy.) As the body seeks to repair areas of damaged brain cells, new interconnections are formed that can alter the usual balance between excitatory and inhibitory impulses in the brain. In a sense, the brain becomes overheated; a seizure is the result.
"Think of the wildfires in the mountains," Spitz suggests. "This begins in one region, where you have a few cells with too many excitatory inputs, too many sparks. It's healed in an aberrant way, which allows this abnormal activity to take place. A fire breaks out. Then it spreads."
In time, McClelland's seizures are brought under control with medication. Other effects of the injury seem to have no remedy. Her family doesn't need the doctors' battery of tests to know that McClelland's cognitive skills have deteriorated. They can see her life spiraling into chaos.
Three months after the accident, McClelland gets into an argument with her supervisor at the auto-glass shop about her erratic performance and ends up quitting her job. She has trouble finding another one. Her mother drops by her apartment and is shocked by what she sees. Of all her children, she'd always felt closest to Sunserea; she admired her optimism, her high energy, the keen sense of organization that allowed her to work three jobs, dote on her kids and still keep her home immaculate. Now all that seems to have disappeared overnight.
"The place was a wreck," Janet Morgan recalls. "Dirty clothes piled around. A tower of dirty dishes. And she was buying things impulsively. She bought a puppy because she felt lonely. She didn't even have money for food at the time. She couldn't understand why I was so angry about it."
Morgan persuades her daughter to move in with her and her husband. For several months, Morgan struggles to find ways to ease Sunserea's burden, but even the simplest tasks often prove frustrating. She washes the same clothes over and over, cleans the same room over and over. She takes two hours to fix a relish tray, forgets to cook enough food to feed everyone in the house. Minding more than one pan on the stove at a time is a strain.
"It got to the point where, if the smoke detector went off, Josh would say, 'Dinner's ready,'" McClelland recalls.
Far more troubling, Morgan says, is the shift in her daughter's personality. The old Sunserea used to play games with her children, spend hours with them working on their homework. The person who moves in with her is irritable, impatient, unable to cope with background noise or family get-togethers. She can't concentrate on a movie or a book, can't help her son with elementary math problems. She yells at her kids, weeps, retreats to her room with agonizing headaches. Who is this woman?
"It was like having to learn to love a different person," Morgan says. "It was painful. And it was devastating to her, because she didn't understand what was happening."
Brain researchers often point to the case of Phineas Gage as a dramatic example of how a brain injury can affect personality. A railroad foreman, Gage had a long metal rod driven completely through his skull by a blasting mishap in 1848. Except for the loss of an eye, Gage was seemingly left intact by the freak accident. But for the rest of his life, the formerly upright Gage behaved in an entirely scandalous manner; the rod had torn up the moral compass in his frontal lobes. He used profanity freely, cheated his friends and otherwise thumbed his nose at social convention. He was, in short, a completely different person.
No one mourns the changes in McClelland more than her older sister, Shannon Disheroon. Before the accident, the two had been particularly close. Sunserea used to love to hear Shannon sing gospel; now it's just noise to her. And Sunserea's prior social skills have been disrupted by impulsiveness and what psychiatrists call "disinhibition"; Shannon is startled to hear her sister blurt out inappropriate sexual remarks, for example, or make a crude comment about someone's weight.
"I shared a bed with Sunserea for the first fifteen years of my life," she says. "I knew her like the back of my hand, as well as one sister can know another. And the person I know died that day. Our relationship is not the same at all."
McClelland doesn't dwell on the changes, but she becomes emotional when talking about what the ordeal has meant to her kids. "They've lost out on a lot," she says. "A lot. It changed their lives completely. We lost our independence. Jaysun had to take on a lot of responsibility, help his brother with his homework, help with the cooking. They've forgotten a lot of it, but it was hard on them. I couldn't play with them anymore. They couldn't be loud in the house. They couldn't be in sports because I couldn't drive them there and I couldn't pay for it. They don't deserve that."
Gradually, she has begun to grasp how the brain injury has affected her and how it will limit her future. "I don't remember ever really processing it or trying to understand it, even to this day," she says. "I learned a lot about it at the trial, but I don't remember some point where I was crushed to learn about it. There were so many things happening. I didn't have time to fit it all together."
Welcome to the Snake Farm
Eight years ago, while he was still in law school in Missouri, Greg Gold was carjacked at gunpoint in a hotel parking lot. The man ordered Gold to drive to an ATM and withdraw all the money he could. Gold told his abductor that he'd picked the wrong person to rob. As the ATM visit quickly demonstrated, Gold had a balance of negative six cents in his account.
The two men spent the next few hours driving around greater St. Louis, trying to cash one of Gold's out-of-state checks. At one grocery store, Gold furtively tried to alert the clerk to his plight, writing "HELP ME" on a check-cashing application while his companion, hand in pocket, stood nearby.
"I can't help you," the clerk snapped. "You're from out of state. It'll take two weeks to process this."
As the night wore on, Gold persuaded the carjacker to stop pointing the gun at his head. He explained why it would be a bad idea to kill him or steal his car. By the time he dropped the man off at a McDonald's, Gold had given him his phone number and offered to help find him a job.
A few months later, Gold was in Denver, looking for a job himself. Attorney John Trueax said he wasn't hiring anyone, but he agreed to meet with him. Gold told him about the carjacking. Trueax and his partner, John Kiel, decided that a guy who could talk his way out of that situation might make a pretty fair lawyer. They offered him a position with their firm.
Gold believes he can be a very successful lawyer, but like any young practitioner, he has moments of doubt. The McClelland case gives him quite a few of those moments.
Even before he knows the full scope of what he's dealing with, Gold realizes that the case isn't headed for a quick settlement. One look at the accident report tells him that much. The insurance carrier listed for the other driver is the kingpin of the industry, State Farm Insurance.
"When you see there isn't a lot of property damage and State Farm is on the other end, you know you're going to be in litigation," Gold says. "They're the leader. Allstate and the others follow them. And State Farm isn't just tough when they're defending one of their insured. They're difficult to deal with even if they're your insurance company and you're trying to get your PIP [personal injury protection] benefits."
One out of five cars on the road is insured by State Farm, the undisputed champion in an extremely contentious business. The company has almost 40 million auto policies in force and processes up to 750,000 auto injury claims each year. But among plaintiffs' attorneys, State Farm is known as "Snake Farm" because of its reputation for underpaying claims, dragging out settlements and playing rough with accident victims who dare to take their cases to trial.
In recent years, the company has been the target of a slew of unflattering media reports and regulatory probes dealing with allegedly underhanded business practices. State Farm has been accused of altering medical reports in order to deny claims, using substandard generic parts to save money in auto repairs, and pushing profits at the expense of policyholders. Company officials have denied any wrongdoing, even as State Farm has been hammered by judges and juries across the country for its treatment of its own customers. The Utah Supreme Court recently upheld a $147 million judgment awarded to a policyholder who claimed the company failed to protect him from ruinous litigation after an accident. A few months earlier, the Arizona Supreme Court concluded that State Farm had engaged in "a deliberate practice of underpaying claims nationwide."
In Colorado, State Farm and other major insurers have lobbied hard for caps on damages and for higher thresholds for filing a lawsuit, arguing that excessive litigation drives up the costs of insurance. After more than a decade of tort-reform efforts, however, Colorado has some of the most expensive auto insurance rates in the West and ranks fourteenth in the nation; studies indicate that soaring premiums have far more to do with the rising cost of auto repairs than with personal-injury lawsuits. In fact, the number of civil cases filed in Colorado has dropped dramatically in the past decade, even as the population has surged.
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.
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."
During his client's stay at the psychiatric hospital, "every moment of her life was documented for State Farm to look at," Gold notes. "Once I saw the psychiatric records, I knew we had an epic battle on our hands."
To evaluate McClelland's claim of accident-related brain injury, State Farm brings in several doctors to examine her, including neurologist Karl Gross, psychiatrist Frederick Miller, orthopedic surgeon Stephen Dinenberg and physical-medicine specialist Angelika Voelkel.
The four doctors are well known to Colorado's personal-injury lawyers. All four have worked with State Farm for years and have testified in court on behalf of the company on numerous occasions. "That's the equivalent of a State Farm dream team," Gold says.
Gross's report challenges the finding of traumatic epilepsy. He doubts that McClelland's seizures are truly epileptic; they might be the result of "psychological difficulties and personality disorders." Even if the patient does have traumatic epilepsy, he writes, it can't be linked to the auto accident. The impact just wasn't that severe, Gross reasons, and the chiropractor McClelland saw that day ("a trained health-care professional") didn't recognize any head injury. It's more likely that the epilepsy is a coincidence, he concludes.
Miller notes McClelland's history of drug use, including high school experimentation with marijuana and LSD and brief use of cocaine just before she went into rehab. Although her own doctors attribute the April 1998 LoDo-to-Castle Rock blackout to a seizure, Miller believes it was a consequence of substance abuse. He also quizzes McClelland at length about her admission that she was physically abused as a child by her stepfather. Miller's report stops short of suggesting that her odd behavior is due to abuse or drugs, but he, too, regards her seizures as non-epileptic in nature. He calls them "pseudo-seizures" and suggests that they might be some kind of subconscious -- or conscious -- strategy for escaping stressful situations: "What are being called seizures may, in fact, only be dissociative episodes primarily related to the repeated trauma of her youth."
It's possible, Miller writes, that "Ms. McClelland may not be reporting her pre-accident drug history accurately." In his opinion, her fundamental problem is depression, a profound depression "aggravated by having been told that she is brain-injured and impaired." Her complaints of persistent pain "are likely the product of that depression."
Voelkel's and Dinenberg's reports follow similar lines. (Dinenberg is blunt: "The patient's multiple emergency-room visits seem to be aimed toward obtaining narcotics," he writes.) McClelland is portrayed as a malingerer, a drug-seeking depressive, an emotionally troubled woman in the grip of pseudo-seizures. Even if she does have a head injury of some kind, none of State Farm's doctors believe that the car accident had anything to do with it.
If McClelland was depressed before, reading the dream team's opinions of her does nothing to lift her spirits. "I was really naive," she says. "Every one of those guys, when I left, I would have swore they were my best friends, except Dr. Miller. I can't conceive how somebody could meet you, talk to you for an hour, read all these records -- and then tell you you're malingering. I'd see the reports they wrote and feel stupid. They took everything I said and put it in the worst way possible."
Morgan says the reports badly distort her daughter's family history. The child-abuse allegation, for example, stems from a single incident in which then-twelve-year-old Sunserea was removed from the home for four days by social services after she reported her stepfather for spanking her. According to Morgan, the incident was an isolated one, and the charges were dropped after her husband agreed to counseling.
Gold believes that State Farm is trying to humiliate his client and "paint her into a trailer park." He files a motion with the court seeking to prove bias on the part of the company's expert witnesses. In a deposition, Karl Gross testifies that he performs sixty to seventy exams a year for insurance companies; other documents show that he earned $128,500 from State Farm alone in the past five years.
According to court records, other members of the dream team pulled in much more. Dinenberg was paid almost $400,000 by State Farm over a nine-year period. Angelika Voelkel received payments totaling more than $800,000 in five years. And Frederick Miller, who maintains a very limited private practice and earns most of his income from litigation work, was paid over one million dollars by State Farm from 1993 to 2000.
Gold asks Jonathan Woodcock, the neurologist who first evaluated McClelland for her own insurance company, to review the dream team's findings. Woodcock writes a caustic rebuttal report, challenging the relevancy of the speculations about child abuse and the defense doctors' harping on McClelland's contradictory statements about herself. "Paradoxically, I would agree that Ms. McClelland at times is unreliable," he writes. "One of the principal reasons is that she had a brain injury."
As for her seizures, Spitz agrees that some of the behavior McClelland manifested while in the psychiatric hospital might qualify as "pseudo-seizures," but that doesn't negate her underlying condition, which has been documented through extensive neurological testing. "Nothing is 100 percent," he says. "But I am much more than 50 percent convinced that she had a significant head injury and epileptic seizures."
Running the gantlet of experts takes its toll on McClelland. At one point, Gold sends a private investigator to track down his client, who's moved again and is missing appointments. "I'd just about given up," McClelland says. "I didn't want to go through a lawsuit. I didn't want to see any more doctors. I wasn't getting any better. But knowing how much Greg had put into it, it wasn't fair to him for me to quit. And it wasn't fair to my kids."
Gold realizes that if the case ever goes to court, McClelland's character will be on trial as much as the facts of the accident. "I never questioned that we were right," he says. "But a lot more goes into a trial than being right."
He suggests a possible settlement conference to John Rodman, the attorney retained by State Farm to defend its policyholder. Rodman declines. (Neither Rodman nor his client, Charles Goodwin, responded to requests from Westword for comment about the case; the account of the litigation presented here is based on court documents, medical records and interviews with other participants.)
Gold sends Rodman an offer to settle the case for an amount just under the personal-injury limits of Goodwin's policy, $100,000.
He finally calls the defense attorney. According to Gold, the conversation goes like this:
"John, it's Greg Gold. Are you guys going to settle this case?"
"No," Rodman tells him.
"Why not?" Gold asks.
"I think you know the answer to that," Rodman replies, and hangs up.
The trial is scheduled for Jefferson County District Court in April 2001, four years after the accident. For several weeks that spring, Gold works on nothing else. He spends long hours studying depositions and medical reports, reading books about epilepsy and head injuries. He files motion after motion in a futile effort to exclude testimony about child abuse, cocaine and other prejudicial matters.
On the Sunday night before jury selection is to begin, he drags nine boxes of documents from his office to his car to haul them to the Jefferson County courthouse. A blast of wind knocks over one box and sweeps papers across the parking lot. Gold collects what he can and goes home to practice his opening statement on his wife.
On Monday morning he argues half a dozen motions and loses them all. Then he notices a new name on the defense's witness list: Elaine Stores, McClelland's former supervisor at the auto-glass shop. No address is listed.
After some wrangling and a lunch break, Rodman explains that Stores now lives out of state. She is prepared to testify that McClelland hit her head falling out of an ambulance and began to exhibit strange behavior after the fall: The alleged mishap occurred six months beforethe car accident, raising questions about the true cause of her brain injury.
Gold is frantic. They're about to bring in the jury, and he's just finding out about a key witness who could sink his whole case. He needs to depose this woman. Most of all, he needs to talk to his client, who is nowhere to be found. Complaining of a headache, McClelland left before lunch. Gold calls her mother, her sister, anyone who might have a lead on her whereabouts. No luck.
Rodman tells him he ought to dismiss the case. Gold turns to District Judge Leland Anderson and asks that jury selection be delayed so that he can find his client and take Stores's deposition over the phone. Anderson agrees.
Gold locates McClelland, who's gone home and fallen asleep. She denies any head injury prior to the car accident. In the deposition with Stores that evening, which can be introduced into the record at trial, Gold spends most of his time gathering basic information rather than trying to impeach the witness.
The next morning he asks for a continuance: He needs more time to investigate this new evidence. Judge Anderson turns down the request and suggests a brief recess so that Gold and his colleague John Trueax and their client can figure out whether they want to proceed to trial.
The three of them sit in a patch of sunlight in the third-floor hallway of the Jefferson County courthouse. They look at the floor. For a long time, no one says anything.
McClelland tells Gold she wants him to make the decision. She knows she's right, she says, but she doesn't want her young attorney to lose everything. She wants it to be up to him.
Gold has the distinct impression that the judge wants him to dismiss the case, maybe to spare him the coming slaughter. Dismissal would mean the end of any potential settlement for his client. It would mean that he and his partners are stuck for the $37,000 in costs they've ponied up to date, not to mention Gold's own endless hours on the case. In the normal course of affairs, it would also mean the defense can come after them for its costs, too, but Rodman has offered to waive those if they will simply walk away. If they go to trial and lose, they won't be so fortunate.
Finally, Gold makes up his mind. He would like to think he is responding out of a love for truth and justice, but at the moment, what he feels is an intense dislike of his opponent, a horror of being sliced and diced, squished and dissed by a company he despises. You can't give in to them, he tells himself. If you do it once, they have you; they know you'll always give in.
"We may lose," he says, "but there's no way I'm dismissing this case and giving in to State Farm."
McClelland agrees. They walk back into the courtroom. Gold tells Anderson that if he can't have the proceedings delayed, he wants to make a record for appeal about a witness being disclosed on the day of trial. This time Anderson gives him the continuance.
Gold's willingness to go to trial apparently strikes the defense as sheer folly. A few days later, Rodman calls to let him know he's making a big mistake.
"He says, 'This case should be dismissed,'" Gold recalls. "He says, 'When this is over, I'm not coming after your firm or your client. I'm coming after you personally for pursuing this frivolous case.' Believe me, that conversation ended abruptly."
Gold takes advantage of the continuance to find out all he can about the injury McClelland suffered when she was unloading an ambulance during her volunteer EMT days. The hospital report, dated November 2, 1996, says she fell "head first" but landed on her knees and hurt her back, not her head. Witnesses who saw the fall concur. The "strange behavior" McClelland displayed after the fall seems to consist of staring off into space -- daydreaming, perhaps. It's also possible that Elaine Stores is confused about her dates. As Gold sees it, the surprise witness isn't a problem at all.
The delay also gives Gold time to reach a surprising and self-effacing decision. He asks Tom Metier, a 46-year-old Fort Collins attorney with considerable experience in brain-injury cases, to join him in trying the case. In effect, Gold is giving up total control in exchange for the financial and legal resources of a seasoned litigator.
A folksy, soft-spoken Iowa native, Metier started his legal career doing defense work for insurance companies but soon decided he didn't have the stomach for it. "It was a place to start, a good place to learn some trial skills," he says. "But it didn't take me long to figure out that this is an unfairly matched game. We weren't taking responsibility for the injuries to the plaintiff. It was just a matter of advocacy, and the insurance-company attorneys had all the trial experience.
"We would make recommendations to settle a case on a fair basis, and the companies would refuse to do that and tell us, 'Just go try the case.' We were beating the plaintiffs out of money justifiably owed to them. Unless you're involved in the system, you don't really see what happens."
Metier likes the case. He meets McClelland and likes her, too. He agrees to step in as lead counsel. He and Gold begin working on trial strategy.
Months pass. Late in March of this year, two weeks before the trial is slated to begin, the defense finally puts a settlement offer on the table: $2,000.
By this point, Gold and Metier's costs on the case have topped $60,000. Under Colorado law, if the plaintiff doesn't win a verdict above the defense's settlement offer, then he's liable for the costs of the defense. "They offer a meaningless settlement," Gold explains, "so that in case the jury offers us a thousand bucks or something, we still have to pay all their costs."
Days before the trial, Greg Gold's wife, Muriel, gives birth to twins, a boy and a girl. Gold sees his babies for a few moments in the middle of the night, on his way to bed after grueling prep sessions at the office.
Judge Anderson, a former president of the Colorado Trial Lawyers Association who writes columns about the ancient Greeks in the Colorado Lawyer, promises both sides an "old-fashioned trial." None of this hurry-up stuff when it comes to jury selection and closing arguments; each side will be able to put on its case.
That suits the Metier-Gold team just fine. Metier serves on the faculty of the Trial Lawyers College, which holds seminars on the Wyoming ranch of legendary buckskinned attorney Gerry Spence, and his low-key approach to trying a case resembles Spence's beguiling sorcery. Meticulously prepared, he manages to seem entirely spontaneous, refusing to be lashed to his notes at the podium, working to project openness and sincerity, to connect with the jury.
"A trial is an event," Metier says. "My style is not to fear that, but to move into that. I truly trust the jury, and I want them to trust me. I'm not going to spoon-feed what I think they ought to hear. How can they trust me if I won't tell them all the facts?"
The defense strategy, as Metier sees it, is "to make Sunserea look like a bad person," a liar and a cheat. His mission is to show the jury who she really is, to tell the whole story.
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.
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.
("Sunserea's a very intelligent woman," says jury forewoman Michelle Vecere, a local travel agent. "She's very articulate, and it was hard to believe at first that she could only work two hours a day. But the longer the testimony went on, you could see her trying to concentrate and remember dates and details, and it was very draining for her...We really walked away with a very good understanding of the injury.")
The trial lasts two and a half weeks. Halfway through, Gold goes to a banquet to pick up a "Young Lawyer of the Year" award from the Colorado Trial Lawyers Association; it's the most time he's spent with his wife in a month.
The closing arguments take an entire day. The jury will begin to deliberate the next morning. Gold goes home, kisses the twins and tries to sleep.
Four hours after the discussion starts, it's over. The jury has reached a decision.
Sunserea McClelland takes the trip to the courthouse alone. She doesn't want her family there, just in case things go bad. If she loses, she doesn't want to be around anybody.
Greg Gold gets the page over lunch at the Black-Eyed Pea and rushes to the courthouse, sending up silent prayers to God and his mother, who died before she could see her son go to work in a courtroom.
Tom Metier slept well. But when he reaches the courthouse, he sees his client sitting in the hallway, and fear begins to gnaw at his insides. He feels responsible for bringing her here, to this moment of judgment, and he doesn't know how she will handle it if she loses.
Metier takes her hand. "We can't control what they're going to do," he says.
McClelland is smiling. She has the calm of a Madonna. "It's okay," she says. "I got what I wanted. Now my kids know I'm not crazy."
They gather in the courtroom. The jury files in and hands the bailiff verdict form B, which means a plaintiff's verdict. Gold tenses, waiting for the amount.
"...non-economic damages, $100,000..."
McClelland thinks, okay, I don't have to pay costs. She thinks that's the end of it. But wait, there's more.
"...economic damages, $1,395,150..."
Gold's hand is shaking. He can't seem to write it down.
"...physical impairment, $21,533.99..."
The jury decides that Goodwin is 80 percent responsible for the accident. The jury holds McClelland 20 percent responsible, reasoning that there may have been other distractions that contributed to her stopping the way she did. The decision reduces her award accordingly, but with interest accrued since the case was first filed, the total amount comes to $1.82 million.
For McClelland, the money is just scratches on a sheet of paper, a nebulous amount that may some day help with her bills and send her kids to college. But right now what is real is the glow of victory, the triumph of being recognized for who she is.
"I was just glad that I didn't have to walk out of that courtroom looking like a liar," she says. "I'm not saying money isn't great. If I ever get any money, that will be great. But after what they put me through, to know these people believed me, that was important."
The Road Ahead
John Rodman has filed a motion for a new trial in the case of McClelland v. Goodwin. An appeal is likely, even though four out of five civil judgments are upheld on appeal.
"They have a difficult appeal," says Gold. "Almost every ruling at trial went in their favor. When you lose a case to State Farm, they give you no mercy. Now they're asking for mercy, asking us to reduce our verdict."
Under Colorado law, there's actually an incentive to appeal a large judgment; filing an appeal reduces the interest rate on the award from 9 to 3 percent, retroactive to the day of the verdict. Meanwhile, Metier says, a huge company such as State Farm -- which, as a matter of policy, assures its customers it will indemnify them against such losses -- continues to earn a much higher rate of return on its investments.
"If they win a new trial, then the verdict goes away," Metier notes. "If they lose, she will be paid, but she's being robbed of a fair return."
Even if McClelland prevails, the amount she receives will be reduced substantially by her attorneys' contingency fees and other costs. "People don't understand that you don't just go to court and pick up a check," says Janet Morgan. "It's not, 'Here's my wreck and here's my check.' She's not going to walk out of this a rich woman, and she has to live on this the rest of her life."
But Morgan and other family members have nothing but praise for McClelland's attorneys. Metier was superb, they say, and as for Gold -- well, they can't say enough.
"For Greg, I don't think it was ever about money," Disheroon says. "He really believed in her and brought a lot of love and care to this case. The first year, when she didn't even have money to buy milk, he showed up at her house at Christmas with a tree and presents for her kids. He stuck with this for four years when everybody wanted to give up. He's a really exceptional human being."
McClelland's life has improved significantly since the days she thought about overdosing on painkillers. She still has excruciating headaches, and riding in a car can bring on severe anxiety. But she has been seizure-free for several years now, and she has a fiancé; friends say he "acts as her frontal lobes," taking charge of organizing household chores, the checkbook and their combined families. McClelland jokes that her plan for her life is "to buy as many pairs of pajamas as I can." She has quite a collection, a souvenir of her many hours in bed since the accident.
Seriously, she adds, "I want to get my kids through school and find something I can do. Even volunteering somewhere is hard. You have to go through training and be scheduled, and I never know when I'm going to have a headache. But I want to feel I'm giving something back instead of sitting around my house."
She sighs, a long exhale of relief. "Emotionally, I feel so much better and lighter," she says, "now that the trial is over."