Original article was published on May 27, 2002 in Lawyers Weekly USA
By Bill Ibelle
Greg Gold was 26 years old and just two years out of law school when he took on a routine fender bender that ended up costing $100,000 to litigate.
“I expected a quick settlement on this case,” said Gold, who works in a four-lawyer firm outside Denver. “This was as standard a case as you can get: A rear-end accident in which a woman was treated by a chiropractor for neck injuries.”
But State Farm Insurance refused to settle, finally giving a low-ball offer of just $2,000. So Gold and co-counsel Thomas Metier took the case to trial – one that ended April 24 with a stunning verdict of $1.5 million.
They did it using a host of unusual courtroom tactics that included a cow’s brain and word associations on the witness stand.
But as the case developed, the chances of success often seemed remote. The accident occurred at only 5 mph and there was no visible damage to the plaintiff’s vehicle. Nor was there any indication at the time that the plaintiff was severely injured. She didn’t seek medical treatment and continued working for another two-and-a-half months.
When she did finally go to the emergency room two months after the accident complaining of headaches, blackouts and seizures, she never even mentioned the accident. To cap things off, the defense had evidence of past drug use and possible abuse as a child.
But the low point for Gold came on the day the case was scheduled for trial. He hadn’t teamed up with Metier yet, and had already pumped about $37,000 into the case.
“This was high stakes poker,” said Gold.
While Gold argued pretrial motions, his client told him she was going downstairs to grab something to eat. But when Gold went to bring her back for jury selection, she was nowhere to be found.
“We searched everywhere. I called her mother, I called her sister, I called her boyfriend – no one knew where she was,” he said. “Meanwhile the judge is asking me where on Earth my client is.”
Before Gold could locate his client – who he later learned had gone home with a headache and fallen asleep – another crisis arose. The defense had just located a witness in Oregon who had the potential to blow Gold’s case out of the water. Since the court could not compel the witness come to Colorado to testify, Gold and defense counsel John Rodman deposed her via conference call.
The witness, who was the plaintiff’s former boss, said the plaintiff suffered from confusion and memory loss prior to the accident. If this was true, Gold’s case was a bust.
“Needless to say, it wasn’t my best day,” he said.
Gold was granted a continuance, but that didn’t end the string of unsettling news. Soon after, Gold got a call from a defense counsel urging him to dismiss the case and warning him that if he failed to do so, he would take action against him for filing a frivolous lawsuit.
“He said, ‘When this is over, I’m going to sue you – not your client, not your firm, but you individually – for the cost of trying this case,” recalled Gold. “I told him that was absurd and changed the topic. But I can tell you, I thought about it that night – and for the rest of the year.”
Within days of the continuance, Gold contacted Metier and asked for help. The hurdles seemed overwhelming – no car damage, a potentially lethal defense witness, evidence of drug dependency.
“I already had $35,000 invested in the case and it was going to be at least another $35,000 before I was done,” he said. “I couldn’t see over the mountains.”
A 5 MPH Collision
On the morning of April 10, 1997, 25-year-old Sunserea McClellan left her home outside Denver in a snowstorm. As she drove down the hill, she saw a truck fishtailing ahead of her and put on her brakes. Moments later she was rear-ended by the defendant, Charles Goodwin.
Gold started the case with some pretty solid facts. Although the plaintiff didn’t seek medical treatment the day of the accident, she did go to a chiropractor complaining of neck pain two weeks later.
“The chiropractor’s records note nausea, blurred vision and headaches – all of which are classic signs of a closed head injury,” said Gold.
Two months after the accident McClellan went to the emergency room complaining of blackouts and trouble concentrating. She was diagnosed with complex partial seizures. Eventually, the plaintiff had to leave work because of her confusion and inability to keep things straight.
Although the defense wanted to paint McClellan as a malingerer, Gold had his client’s work history working for him.
“She was a single mother with two small kids and prior to the accident, she was working three jobs to support them,” he said.
Before reporting for her full-time job as an assistant manager in a glass plant, McClellan worked as a janitor from 6 a.m. to 8 a.m. Then on every other weekend, she worked a 48-hour shift as an EMT for an ambulance company.
As the litigation progressed, Gold also secured testimony from one of the region’s most respected doctors saying the plaintiffs injuries were real and were most likely caused by the accident.
Gold expected State Farm to settle for the $100,000 policy limits, but the company refused. In fact, they refused to even make a counter-offer until a few weeks before trial, when they offered a mere $2,000.
State Farm’s attorney, John Rodman, did not return phone calls to Lawyers Weekly USA, but Gold said the company mounted a multi-tiered defense:
- The defendant didn’t cause the accident.
The defense emphasized that the accident occurred at low speeds during a snow storm and that their client was not at fault because McClellan came to a sudden stop for no reason.
- The plaintiff wasn’t injured
Even if the defendant was liable for the rear-end collision, the defense argued that the plaintiff was not seriously injured in the accident.They noted that there was no visible damage to the plaintiff’s car and only $500 in damage to the defendant’s car.
Furthermore, they argued that the complete absence of bumper damage indicated the cars were moving very slowly when they hit.
The defendant’s bumper was rated at 5mph and our client’s bumper was rated at 2.5 mph,” said Metier, who practices in a three lawyer firm in Fort Collins, Colo.“Based on the lack of bumper damage, they argued that the accident certainly happened at less than 5 mph and probably at less than 2.5mph.”
As for the diagnosis that McClellan suffered from complex partial seizures, the defense argued that these were “pseudo seizures” – a condition that is triggered by psychological problems rather than physical ones.They brought in experts who testified that the symptoms of pseudo seizures mimic those of true epileptic seizures so closely that few doctors can tell the difference.
- The injury was caused by an earlier accident.
If the jury concluded the plaintiff had been seriously injured, the defense contended that those injuries were caused by an earlier accident.This was where the testimony of the last-minute witness proved critical.
During her deposition, McClellan’s former boss said that she began noticing the plaintiff’s confusion and blackouts several months prior to the accident.She said she became concerned when McClellan had trouble operating software she had been working with for years.
She claimed this began about the time McClellan, while working her other job as an EMT, fell and hit her head while unloading a patient from an ambulance.That incident occurred six months before the accident.
The defense also raised several others possible sources of the plaintiff’s alleged injuries – each of which also served to cast her in a negative light.
The first was that she had been a victim of child abuse and that this trauma could be the source of her pseudo seizures.The defense based this on reports showing that McClellan had been placed in foster care as a child following allegations of abuse.
The second issue raised by the defense was drug abuse.McClellan admitted to using marijuana and cocaine and to a dependence on Dilaudid – a highly addictive painkiller that required her to enter a drug treatment program.
The defense implied that her drug abuse may have been the cause of her brain dysfunction.
A Cow’s Brain On the Table
Metier’s first hurdle at trial was to establish liability – that the defendant caused the accident rather than the snow or McClellan’s braking.
He did this almost entirely through his direct examination of the defendant, Charles Goodwin.Metier began by setting the scene so that the jury would see that Goodwin didn’t use sufficient caution, given the fact that it was already snowing, he was driving down a hill and he knew it was slippery.
He established that Goodwin didn’t put on his brakes immediately when he saw McClellan’s brake lights ahead of him.Instead he continued down the hill until he was three car lengths behind her before putting on his brakes.
“By painting a picture of what he knew, the jury comes to the conclusion that he never should have gotten that close to the car ahead of him,” said Metier.“By getting in all the details, we eliminated the assumption that the accident happened because it was slippery.”
The next challenge was to prove that such a minor accident could cause such serious injuries.
Goodwin conceded that the plaintiff’s car “shot forward,” Metier said.He used this to argue that, regardless of how minor the car damage may have been, the collision created a considerable whiplash effect.
Furthermore, the mechanic who worked on the car testified that Callahan’s vehicle was “one of those cars with hidden damages.” Those damages included a bent steel frame.
“We asked him if it would take a lot of force to bend steel,” recalled Gold.“He said, ‘Yes.’ We didn’t get into speeds.We just said it takes a lot of force to bend a steel frame.And when the defense attacked the mechanic’s expertise, he just replied, ‘Doers do and those who can’t do, teach.’ The jury loved that.”
With the notion planted in the jury’s mind that there must have been significant impact, Metier conducted one of his more unusual courtroom presentations: He brought in a cow’s brain and laid it on a table.
“The impression that most people have is that it takes a lot of force to damage your brain,” said Metier.“They watch boxing or NFL football and conclude that if those people can take that kind of punishment, a minor car accident isn’t going to hurt you.What they don’t understand is that it’s not necessarily the impact, but the acceleration and deceleration of the brain inside the skull that causes the damage.In a case of whiplash, the brain has a lot of momentum and it hits the inside of the skull.”
So how do you convey this notion so that the jury truly understands?Most lawyers call experts who testify how the brain is like Jello or yogurt.Metier did that – but then he went a step further.
He began by bringing in an actual human skull.He asked the jurors to feel the sharp bone ridges inside the skull.Then he brought in a cow’s brain.
“They could see that it’s so soft, it can’t even hold its shape when you put it down on the table,” he said. “When it’s not floating in the fluid that suspends it inside your head, it just lies there like a squid.”
“Then we gave each of the jurors surgical gloves and invited them to come up to the table and feel the brain for themselves.This wasn’t just a stunt.It really was an attempt to educate the jury.”
The surprise witness
Once he established that Goodwin caused the accident and that a low-speed crash could injure a brain, Metier had to attack the defense theories of how those injuries could have occurred.
The most damaging theory – one made possible by the unexpected testimony of McClellan’s former boss – was that the injury occurred in the earlier ambulance incident.In fact, hospital records raised the possibility of a head injury.Unless Gold and Metier could refute this evidence, their case was over.
So Metier attacked the witness’ reliability.He began by calling several eye-witnesses to the ambulance incident who testified that McClellan hurt her back and neck, but never hit her head.He noted that she returned to work as an EMT two weeks later with a full medical clearance, and continued to receive glowing reviews.
Then he began attacking the deposition itself.He noted that the boss was deposed four years after the accident occurred and was answering questions without any notes or records to refer to.
“I had their neurologist on the stand and I said, ‘Wouldn’t it be terrible to get a phone call out of nowhere and, without any notes or records, have to answer questions about an employee you worked with four years ago?’ Then I asked him about the health of his office manager on this day four years ago,” said Metier. “Naturally, he couldn’t do this.”
Metier’s contention was that after four years, the supervisor’s memory was not accurate about when McClellan’s symptoms began.
Next up was the defense contention that McClellan’s seizures might have been psychological in origin and that abuse as a child may have been the catalyst.The plaintiff’s lawyers dealt with this quickly by noting that there was nothing to indicate that McClellan was beaten as a child and that she was only in foster care once, for four days.
They also argued that if her “pseudo” seizures were, indeed, triggered by stress, then one would think she would have had one recently.
“Let’s fact it, there’s nothing more stressful than a trial – you go in a pig and come out a sausage,” said Gold.“And she has been seizure-free for two-and-a-half years.”
The final issue was McClellan’s drug use, an issue that the focus groups identified as a serious problem for the plaintiff.
Realizing that it had the potential to turn the jury against his client, Metier began addressing this problem in voir dire.
“I told them, ‘I’ve done some things in my life I don’t want to be judged by.’ Then I asked, ‘How many people in this room have also done things in their life they don’t want to be judged by?’ Everyone in the room raised their hand, from the 72-year-old grandmother to the 22-year-old Gen-X waiter.”
During trial he addressed the issue head-on in an attempt to derail the defense lawyer’s implications that the drug use was more extensive than it really was.
McClellan readily admitted to using marijuana in her youth and to entering rehab to treat her addiction to painkillers.In addition, Metier pointed out that this addiction was a direct result of the accident. The pills were prescribed by her doctor and she never took more than the recommended amount.
In fact, Metier used McLellan’s addiction as an element of his damages argument, contending that the defendant should compensate his client for the money she had to spend on the medication and the rehab, and that she should be compensated for the pain and suffering the addiction caused.
As for the cocaine use, Metier claimed that his client used it just once to ease the pain she experienced when she tried to quit the Dilaudid.
Word Association On The Stand
The plaintiff’s lawyers called their client to the stand as part of their damages argument.They wanted the jury to hear about her suffering first-hand and also to witness the subtle, but devastating, effects of the accident on her brain functioning.
This presented a unique challenge, since McClellan couldn’t focus her thoughts or stay on point.Metier could have dealt with this by asking a series of very specific questions, but he said that would have made her testimony seem “stilted” and rehearsed.
“What I needed to do was figure out how we could key into a stimulus that would allow her to focus on the significant elements of her story.It’s all in there, we just needed to figure out to access it,” he said.
What he discovered during his pretrial discussions with McClellan was that when he said certain words, she keyed in on significant elements of her experience.So after a few minutes of conventional questioning, Metier explained to the jury that he was going to do some word associations on the stand.”
“When I said ‘love,’ she talked about how she had lost the respect of others and how she had lost her self-respect because she had to abandon her career. I’d say ‘guilt,’ and her response would be to talk about how she had become a burden to her children and her parents.Then she looked at the jury – and this was completely spontaneous – and said, ‘And I feel guilty for taking your time to listen to the events of my life.’”
Metier said it was very powerful testimony.
The cross-examination of his client also worked to Metier’s advantage, because he had already called several experts who explained how her injuries affected her ability to focus and follow directions.
“As a result, [the jurors] were able to cue in on the subtleties of what they were seeing [during the extensive cross-examination],” he said. “They could see here increasing confusion as her testimony progressed.They could see her trying to comply but being unable to process the documents that were put in front of her. The jury watched her decompensate right there in front of them.”
The result of the 11-day trial was a $1.5 million verdict – a far cry from the $2,000 offered by State Farm just a few weeks before trial.
This included $1.4 million in economic damages based on the plaintiff’s lost income as an EMT, $100,000 in non-economic damages and $22,000 for her physical impairment. The jury found the plaintiff 20 percent liable for the accident, but after the judge added pretrial interest the total payment ordered by the court came to $1.84 million.
Greg Gold of Kiel & Trueax, in Englewood, Colo.; Thomas Metier of The Metier Law Firm in Fort Collins, Colo.
John Rodman, solo, in Denver.
McClellan v. Goodwin; Jefferson County District Court, in Golden, Colo.; Judge Leland Anderson
About the Author - Bill Ibelle
I am a freelance writer with the experience and relentless curiosity needed to bring your story to life.Rather than rely on broad marketing assertions, I will help you stand apart by showing your services in action.
Throughout my career, I’ve used reporting as a way to explore the world – and writing as a way to share what I learn.I will bring this same sense of excitement to your assignments, creating stories that will move your clients to actions.
To gain background for my stories, I’ve flown in a stunt plane, climbed a retreating glacier, and explored a sacred Navaho canyon.
But the material for most of my stories is gathered vicariously through detailed interviews with those far more adventurous than myself – the scientists, lawyers, innovators, and healthcare providers who make our world a better place.
Whether my subject is students working in Syrian refugee camps or a lawyer’s lifelong battle against the tobacco industry, my guiding principles are always the same: Be curious, be kind, operate with integrity – and don’t rest until you understand.
You can learn more about Bill and his work by visiting his website.